University of Lapland
From the SelectedWorks of Stefan Kirchner
April 15, 2015
Cold War Legacy and Continuing Temptation:
Tactical Nuclear Weapons in International
Humanitarian Law
Stefan Kirchner, University of Lapland
Available at: http://works.bepress.com/stefan_kirchner/2/
Cold War Legacy and Continuing Temptation: Tactical Nuclear Weapons in
International Humanitarian Law
Stefan Kirchner
Author contact information:
Rechtsanwalt Dr. Stefan Kirchner, MJI
Associate Professor for Fundamental and Human Rights
University of Lapland
Faculty of Law
Yliopistonkatu 8 C 348
96101 Rovaniemi
Finland
Email: [email protected]
Phone: +358 404844 001
Abstract: During the Cold War as well as in the wake of the 9/11 terrorist attacks, low yield
tactical nuclear weapons have been deployed or, in the latter case, at least envisaged (again).
Of particular interest in the early years of the 21st century have been so called bunker busters,
nuclear weapons which can penetrate the ground and which can be used to destroy underground
facilities, such as Iranian nuclear facilities. In this article, the role of tactical nuclear weapons
during the Cold War and today is explained and the legality of the use of tactical nuclear
weapons, in particular bunker busters, is examined from the perspective of international law,
both in the context of the non-proliferation regime and, more importantly, the ius in bello,
International Humanitarian Law.
Keywords: Cold War, 9/11, Nuclear Weapons, International Humanitarian Law, United
States, Russia, Germany.
I. Introduction
1. Background
In its 1996 advisory opinion regarding the legality of the use of nuclear weapons and the threat
thereof,1 the International Court of Justice (I.C.J.) stated that, although the use and threat of
use of nuclear weapons is incompatible with International Humanitarian Law (IHL),2 the
United Nations’ (UN) highest judicial organ3 was unable to render an opinion on small nuclear
weapons, since the Court had no information under which circumstances the use of such lowyield nuclear weapons was envisaged nor whether the use of small nuclear weapons would bear
1
International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of
8 July 1996, I.C.J. REPORTS 1996, available online at http://www.icj-cij.org/docket/files/95/7495.pdf. (All links
are up to date as of 23 August 2014.)
2
Ibid., para. 105 (2) E.
3
Cf. UNITED NATIONS. Main Bodies, about the International Court of Justice, http://www.un.org/en/mainbodies/.
1/8
the risk of an escalation of the conflict in question to an all-out nuclear war.4 With the wars
after 9/11, the development of nuclear weapons by North Korea5 and fears of the acquisition
of a nuclear capability by Iran,6 this situation has changed in recent years. Tactical nuclear
weapons became thinkable again,7 thus raising a number of issues in international law. This is
particularly, but not exclusively, the case with regard to International Humanitarian Law. After
the Bush Administration formulated a new Nuclear Posture Review8 which in part became
public in March 2002,9 funding for research into the possibility to build nuclear ‘bunker
buster’10 bombs, i.e. bombs which could take out hardened and / or underground targets, was
approved by the United States Congress on 12 November 2002.11 Low-yield nuclear weapons
are generally said to be explosives with an output of less than 5 kilotons12 (kT).13
Already before the political relations between Russia and the (now bigger) West deteriorated
to the brink of a new Cold War in the course of the year 2014, Russia’s deployment of tactical
nuclear weapons has been a continuing concern.14 In this article, the ideas behind the
development of tactical nuclear weapons as well as the historical background are explained
and their legality under IHL is questioned. While plans for the creation of new small nuclear
weapons are said to have been shelved for now,15 the mere possibility of such weapons and the
idea of a limited nuclear war make it necessary to research this issue.
2. Tactical Nuclear Weapons during the Cold War
4
International Court of Justice (note 1), para. 94.
On the development of nuclear weapons in North Korea, see Larry A. Niksch. NORTH KOREA'S NUCLEAR
WEAPONS DEVELOPMENT AND DIPLOMACY (2010).
6
With regard to the risks of a nuclear Iran, see Eric S. Edelman, Andrew F. Krepinevich Jr., Evan Braden
Montgomery. The Dangers of a Nuclear Iran. The Limits of Containment, in: Foreign Affairs, January/February
2011 issue, http://www.foreignaffairs.com/articles/67162/eric-s-edelman-andrew-f-krepinevich-jr-and-evanbraden-montgomer/the-dangers-of-a-nuclear-iran.
7
Cf. Carlo Masala. Why a nuclear free world is neither realistic nor desirable, in: EUROPARL.EUROPA.EU (2009),
http://www.europarl.europa.eu/document/activities/cont/200912/20091215ATT66470/20091215ATT66470EN.
pdf.
8
On the Nuclear Posture Review of the Bush Administration, cf. Philipp Bleek. Nuclear Posture Review Released,
Stresses
Flexible
Force
Planning,
in:
ARMS
CONTROL
TODAY,
January
2002,
http://www.armscontrol.org/act/2002_01-02/nprjanfeb02.
9
Christine Kucia. Congress Approves Nuclear 'Bunker Buster' Research, in: ARMS CONTROL TODAY, December
2002, http://www.armscontrol.org/Act/2002_12/bunkerbuster_dec02.asp.
10
'Bunker busters' are also known as earth-penetrating weapons and are designed to hit underground targets, such
as formerly safe bunkers.
11
Kucia (note 9).
12
The term “kiloton” refers to the equivalency with the explosive power of one thousand tons of Trinitrotoluene
(TNT).
13
John Borroughs. The Lawfulness of "Low-Yield", Earth-Penetrating Nuclear Weapons, available online at
http://www.lcnp.org/wcourt/nwlawfulness.htm.
14
See for example the 3 January 2014 report for the U.S. Congressional Research Service by Amy F. Woolf.
NONSTRATEGIC
NUCLEAR
WEAPONS,
Congressional
Research
Service
7-5700
(2014),
http://fas.org/sgp/crs/nuke/RL32572.pdf.
15
No author named, Congressional Members and Nat'l Security Say Bush's Costly and Counterproductive
Nuclear Weapons Plans Should Be Shelved, in: ARMS CONTROL TODAY, 7 May 2004, available online at
http://www.armscontrol.org/pressroom/2004/May_2004.
5
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One key Cold War scenario was the possible invasion of West Germany by Warsaw Pact
forces.16 Given West Germany’s short East-West extension and the proximity of major targets
such as Frankfurt and Hannover to the German-German border, nuclear battlefield weapons
had been deployed in West Germany. They were meant to be used by West German and Allied
forces in order to halt or at least slow down any Warsaw Pact invasion into West Germany
before reinforcements would arrive. During the Cold War, a large number of Allied Forces
were based in Germany but the North Atlantic Treaty Organization’s (NATO) war plans
included the need to send more troops from other NATO states and in particular from North
America to Germany in the event of an invasion, which was practiced annually in the so-called
Return of Forces to Germany (REFORGER) exercises. The REFORGER exercises were at
time so large that they triggered concerns in the USSR that they could be used as cover for an
actual invasion to the Warsaw Pact states by NATO. The transport of Allied forces to Germany
in the event of a Soviet invasion would take some time during which NATO forces already
present in West Germany would have had to hold against the expected onslaught from the East.
West Germany’s inability to trade territory for time lead to the idea to use small nuclear
weapons on the battlefield in the Eastern parts of West Germany. One (but by no means the
only) example of nuclear battlefield artillery was the a type of “nuclear bazooka”17 commonly
referred to by NATO forces as “Davy Crockett”.18 The Davy Crockett was a portable nuclear
battlefield weapon, which was to be transported on a jeep19 and operated by a team of two.20 It
had one 0.01 or 0.02 kT warhead.21 The concept behind it was as simple as astonishing:
immediately after the beginning of a massive ground invasion from the East, a small team
would drive from Allied bases near the border towards the advancing Warsaw Pact invasion
force; a few miles before actually making contact with the enemy force, a small nuclear
warhead would be fired towards the invasion force and the Allied troops would retreat
immediately in order to escape the nuclear blast they had just unleashed on the enemy. Even
without the use of strategic nuclear weapons, parts of West Germany would have been reduced
to a nuclear wasteland in order to slow down the Soviet advance long enough for other forces
to be ready to repel the attack and for reinforcements to arrive across the Atlantic. In addition,
the use of nuclear mines22 and nuclear warheads e.g. on “Lacrosse”23 and “Lance”24 missiles,
had been considered by the West during the Cold War but nuclear battlefield weapons systems
were part of the arsenals of both sides - and continue to play a role in the arsenals of both the
16
Historically on this event, see David Rennie. World War Three Seen Through Soviet Eyes, in: THE TELEGRAPH
ONLINE, 26 November 2005, http://www.telegraph.co.uk/news/worldnews/europe/poland/1504008/World-WarThree-seen-through-Soviet-eyes.html.
17
Robert Gleason. THE NUCLEAR TERRORIST (2014), p. 179.
18
For an in-depth description of the Davy Crockett, visit JR Potts, M28/M29 Davy Crockett Tactical Nuclear
Recoilless Gun (1961), in: MILITARYFACTORY.COM, 9 May 2012, available online at
http://www.militaryfactory.com/smallarms/detail.asp?smallarms_id=570.
19
No author named. Rückzug aus Europa, in: DER SPIEGEL, 24/1965, available online at
http://www.spiegel.de/spiegel/print/d-46272947.html)
20
Ibid.
21
No author named, Complete List of All U.S. Nuclear Weapons, entry "Mk-54", in: NUCLEAR WEAPONS
ARCHIVE (2006), http://nuclearweaponarchive.org/Usa/Weapons/Allbombs.html.
22
Cf. Jamie Wilson. Nuclear Mines to 'Stop the Soviets', in: THE GUARDIAN ONLINE, 17 July 2003,
http://www.theguardian.com/uk/2003/jul/17/world.jamiewilson.
23
The MGM-18 Lacrosse missile was designed for close-support of ground troops. The missile cold be equipped
with a W40 nuclear warhead. (See no author named. Lacrosse Missile MGM-18, in: BROOKINGS.EDU,
http://www.brookings.edu/about/projects/archive/nucweapons/lacrosse.
24
For further information on the road-mobile MGM-52 Lance missile, see the entry MGM-52 Lance, in: MISSILE
TREAT: A PROJECT OF THE GEORGE C. MARSHALL AND CLAREMONT INSTITUTES,
http://missilethreat.com/missiles/mgm-52-lance.
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United States and the Russian Federation.25 It appears save to assume that most nuclear powers
have the technological ability to design and produce nuclear battlefield weapons, if so desired.
While this requires a relatively small warhead, examples such as the Lance missile or the
potential for putting a nuclear warhead on Scud missiles26 shows that the warhead can remain
sizable. Building nuclear artillery systems does not require the know-how which went into the
creation of weapons like the Davy Crockett which US forces27 were supposed to use against a
Soviet invasion.
In 1994, after the end of the Cold War, the United States banned research on such small nuclear
weapons.28 This made sense because the existence of small nuclear weapons created the
possibility of a local, tactical, nuclear strike, which could trigger a nuclear response by other
states which do not have this tactical nuclear option but ‘only’ strategic nuclear weapons such
as nuclear bombs and missile based nuclear weapons. The idea of mutually assured destruction
(MAD), which prevailed during the Cold War, does not apply to small nuclear weapons in the
same way. This is especially the case if the technology is not widely available among hostile
actors.
A side-effect of a proliferation is the risk of accessibility of small, portable, nuclear devices by
terrorists. Already today, there is a permanent risk of radiological attacks due to the ease of
access to nuclear material, e.g. from medical devices,29 be it through a “dirty bomb”30 or
through simply placing nuclear material in a public place.31
A dirty nuclear bomb attack against a state which has strategic but not tactical nuclear weapons
and weak conventional armed forces (or conventional armed forces which lack the ability to
strike directly at a potential far-away target abroad) could lead to a strategic nuclear response,
thereby potentially triggering a global nuclear war. The global risks inherent in the use of
nuclear weapons appear have led to a conscious decision on the part of the United States to
refrain from further developing such small nuclear devices. The increased risk of terrorism
shows that this was also an important decision in this regard. This problem, however, is not
25
The Center for Arms Control and Non-Proliferation, U.S. TACTICAL NUCLEAR WEAPONS IN EUROPE FACT
(2011),
http://armscontrolcenter.org/issues/nuclearweapons/articles/US_Tactical_Nuclear_Weapons_Fact_sheet/.
26
Federation of American Scientists, R-11 / SS-1B SCUD-A — R-300 9K72 ELBRUS / SS-1C SCUD-B (2000),
http://fas.org/nuke/guide/russia/theater/r-11.htm.
27
The then West German Federal Minister of Defense Franz Josef Strauss had asked for Davy Crocketts to be
handed over to West German Bundeswehr forces as well. Although NATO commander-in-chief General Laris
Norstand initially supported that request, the American government refused to authorize German forces to handle
the small nuclear weapon, cf. note 19.
28
See Robert W. Nelson, Low-Yield Earth-Penetrating Weapons, in: 54 THE JOURNAL OF THE FEDERATION OF
AMERICAN SCIENTISTS 1 (2001), http://fas.org/faspir/2001/v54n1/weapons.htm.
29
See e.g. Gabriela Martinez, Joshua Partlow, Stolen cobalt-60 found in Mexico; thieves may be doomed,
Washington Post, 5 December 2013, http://www.washingtonpost.com/world/stolen-cobalt-60-found-in-mexicocurious-thieves-likely-doomed/2013/12/05/262ef990-5d66-11e3-8d24-31c016b976b2_story.html.
30
"A “dirty bomb” is one type of a radiological dispersal device (RDD) that combines conventional explosives,
such as dynamite, with radioactive material". (United States Nuclear Regulatory Commission, FACT SHEET ON
DIRTY BOMBS (2012), http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/fs-dirty-bombs.html.
31
This method has been used by Chechen separatists in order to substantiate their claim of access to nuclear
material: “In November 1995, Chechen rebel leader Shamil Basayev claimed that his forces had access to nuclear
weapons and materials. To prove his claim, he guided a Moscow television crew to Izmailovsky Park in Moscow,
where a container of radioactive cesium was discovered.” (David Albright, Kevin O’Neill and Corey Hinderstein.
NUCLEAR TERRORISM: THE UNTHINKABLE NIGHTMARE, Institute for Science and International Security (2001),
http://www.isis-online.org/publications/terrorism/overview.pdf, p. 3.)
SHEET
4/8
one which has newly emerged after 9/11. In fact, in early 1977, West German Red Army
Faction (RAF) terrorists attacked a U.S. Army Depot in Giessen, West Germany, in an attempt
to steal nuclear weapons.32 Giessen is located west of the Fulda Gap and north of the Federal
Republic of Germany’s (FRG) commercial center of Frankfurt am Main, along one of the
Germany’s most ancient trading routes and also one of most likely invasion routes from the
German Democratic Republic (GDR) towards Frankfurt in the event of a Soviet attack. The
idea to have small nuclear weapons on the battlefield in order to halt a Soviet advance into
West-Germany almost led to nuclear disaster. While the RAF attack on the Giessen Depot
could be repelled. Yet, this is a reminder of the risk that a small nuclear weapon can fall into
the
hands
of
terrorists
as
well.
3. Tactical Nuclear Weapons after 9/11
The ‘new’ tactical nuclear weapons, which have been envisaged in recent years are said to have
yields "substantially higher than five kilotons”.33 Funding for research into the required Robust
Nuclear Earth Penetrator (RNEP) Technology34, which is supposed to allow for a penetration
which in turn should allow for a subterranean explosion,35 was also approved by the U.S.
Congress on 22 May 2003.36
In 2005, the program was officially cancelled37 but there has been speculation that it might
continue.38 Like in the case of Cold War era nuclear battlefield weapons, the mere existence of
the technology is sufficient reason for concern as small nuclear weapons might give decisionmakers the impression that a tactical use of nuclear weapons would be possible without a
strategic retaliation. This assumption is extremely dangerous as it has to be wrong only once
in order to trigger widespread annihilation. In particular as the generation of political and
military decision-makers who were already active in the Cold War, at least in the 1980s, is
leaving the scene and is bound to be replaced by a generation of actors for whom the Cold War
(let alone Hiroshima and Nagasaki) is a history lesson rather than an active memory (even if
only a childhood memory), this approach might become tempting again in the future.
Possible targets for low yield nuclear devices could be underground command bunkers at
underground which could not be reached with conventional weapons. However, the use of a
tactical nuclear weapon is hardly a surgical strike:39 it is estimated that even 2,100 meters from
the explosion the radioactive dose would be lethal.40 Of particular concern is the fact that a
subterranean explosion will blow out large amounts of radioactive dirt which inevitably will
rain down over the local region, since no RNEP can bury even a 0.15 kT device deep enough
32
Barry L. Rothberg. Averting Armageddon: Preventing Nuclear Terrorism In the United States, in: 8 DUKE
JOURNAL
OF
COMPARATIVE
&
INTERNATIONAL
LAW
79-134
(1997),
http://scholarship.law.duke.edu/djcil/vol8/iss1/6, p. 89.
33
Everet Beckner, as quoted by Kucia (note 9).
34
Cf. Jonathan Medalia, "BUNKER BUSTERS": ROBUST NUCLEAR EARTH PENETRATOR ISSUES, FY2005-FY2007,
in: CRS Report for Congress (2006), http://fas.org/sgp/crs/nuke/RL32347.pdf.
35
Ibid.
36
Kucia (note 9).
37
No author named, Congress Cancels R&D for Nuclear Earth-Penetrator Bombs, in: DEFENSE INDUSTRY DAILY,
28 October 2005, http://www.defenseindustrydaily.com/congress-cancels-rd-for-nuclear-earthpenetrator-bombs01404.
38
Ibid.
39
Nelson (note 28).
40
Markus Becker. Forscher entwerfen Bushs nukleare Sense, in: SPIEGEL ONLINE, 11 November 2003,
http://www.spiegel.de/wissenschaft/mensch/0,1518,273394,00.html.
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to contain the explosion.41 The only earth-penetrating nuclear bomb currently available, the
B61-11, is said to be only able to penetrate some 20 ft into dry air when dropped from an
altitude of 40,000 ft.42 According to tests conducted in the U.S., a 5kT device needs to be buried
some 650 ft under ground, in order to contain the explosion in the ground43 and a 100 kT
explosion can only be contained if it occurs 1300 ft under ground.44 Yet it is hardly possible,
from a technical point of view, to achieve such deep a penetration, given the fact that the
hardened tip of the warhead would deform due to the heat caused by the impact.45
Consequently, the nuclear bunker busting technologies available today appear to be insufficient
to avoid significant fallout and damage above ground.
II. Legality of the Use of Tactical Nuclear Weapons under International Humanitarian
Law
While the legality of the use of a weapon depends on circumstances such as the target, the
presence of civilians in the potentially affected area etc., some general remarks can be made
concerning the use of tactical nuclear weapons and its compatibility with IHL.
1. The Prohibition of indiscriminatory attacks
According to Art. 51 (4) of the 1st Additional Protocol (AP I)46 to the Geneva Conventions47
non-discriminatory attacks are prohibited. This is also a rule of customary international law.48
Although it is not illegal per se to use weapons which do not discriminate between military and
civilian targets,49 it is illegal to use weapons in a non-discriminatory way. If a small nuclear
device such as the Davy Crockett would be used on the battlefield, e.g. against advancing
enemy troops in an uninhabited desert area, the attack could be discriminatory, provided that
there are no civilians within the effective range of the weapon. A larger bomb, be it nuclear or
even conventional (e.g. the Daisy Cutter / Commando Vault BLU-82 bombs used by the United
States in Vietnam and Afghanistan50) raises the issue more severely, as does the use of armed
force in the vicinity of civilians. Any use of small nuclear weaponry against command centers
and the headquarters of political leaders located in populated areas would most likely be
indiscriminatory and therefore already prohibited by Art. 51 (4) AP I and customary
international law.
2. The Prohibition of unnecessary suffering or injury
41
Nelson (note 28).
Ibid.
43
Ibid.
44
Ibid.
45
Ibid.
46
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977, http://www.icrc.org/ihl/INTRO/470; on AP I see Gary
D. Solis. THE LAW OF ARMED CONFLICT - INTERNATIONAL HUMANITARIAN LAW IN WAR (2010), pp. 121 et seq.
47
The Geneva Conventions of 12 August 1949, http://www.icrc.org/eng/assets/files/publications/icrc-0020173.pdf.
48
Knut Ipsen, VÖLKERRECHT (1999), p. 1086. See also Solis (note 46), p. 122.
49
But see also the wording in International Court of Justice (note 1), para. 78 et seq.
50
See also Stefan Kirchner. Der aktuelle Fall: Der Einsatz von Bomben des Typs BLU-82 "Daisy Cutter" durch
die USA in Afghanistan, in: 15 HUMANITÄRES VÖLKERRECHT — INFORMATIONSSCHRIFTEN (2002), pp. 26 et
seq.
42
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Furthermore, Art. 35 (2) of the 1st Additional Protocol (AP I) to the Geneva Conventions and
customary international law prohibit the causation of unnecessary suffering or injury. 51 The
burning effects of the flash caused by the nuclear explosion and the death by radiation which
soldiers not killed immediately will suffer go beyond what is necessary to incapacitate hostile
forces.52 Because all weapons causing burn wounds are considered to be prohibited under this
rule,53 the burn wounds suffered due to the nuclear flash would justify classifying nuclear
devices as prohibited under customary international law and Art. 35 (2) AP II. This conclusion
would still leave open the possibility of using such devices against unmanned locations.
3. Protection of the Environment in Times of Armed Conflict
A further prohibition of the employment of small scale nuclear could arise from rules of
international environmental law, specifically Art. 35 (3) API I which prohibits means and
methods of warfare of which it can be expected that they harm the environment, which clearly
would be the case, would there be substantial radiation left behind after the explosion. Although
the explosion would be underground, it would not be deep enough to be fully contained. Even
if such a deep impact would be possible, the radiation could affect for example the ground
water, resulting in a violation of Art. 35 (3) AP I. Given the large impact of modern warfare on
the environment, such as during the Vietnam war and the 2nd and 3rd Gulf Wars (Operations
“Desert Storm” and “Iraqi Freedom”), there seems to be no sufficient state practice for a rule
of customary international law parallel to Art. 35 (3) AP I.
IV. Conclusions and Outlook
Using small nuclear devices with present day RNEP technology therefore would be illegal
under international law if used against targets located in populated areas and must not be used
against human targets at all due to the unnecessary suffering which would be caused, both of
which would violate IHL, specifically Art. 51 (4) AP I, Art. 35 (2) AP II and customary
international law. The use of such weapons would furthermore be contrary to Art. 35 (3) AP I
due to the like environmental impact and could, if applicable, be contrary to negative security
assurances given by nuclear powers under the NPT framework.
Small nuclear devices are considered to be particularly dangerous not because of their
explosive power but because they can contribute the idea that a limited nuclear war is possible.
Large nuclear weapons were not used during then Cold War due to the deterrent effect which
so fittingly was described as mutually assured destruction: if one side were to use nuclear
weapons, the other side would retaliate in kind, leading to total devastation. The number of
nuclear weapons held by the West and the USSR during the Cold War (or, for that matter, the
number of nuclear weapons under US and Russian control) was more than sufficient to turn
the other side into a nuclear wasteland. It was MAD and the occasional calm mind of those in
charge which prevented the use of nuclear weapons. In the case of tactical nuclear weapons the
idea that a limited use of nuclear weapons is possible without triggering the use of strategic
nuclear weapons by the attacked party can be disastrous. From the perspective of International
Humanitarian Law there appears to be very little leeway for states and there seem to be very
51
"It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering."
52
Cf. Solis (note 46), p. 271.
53
Cf. William John Fenrick. New Developments in the Law Concerning the Use of Conventional Weapons in
Armed Conflict, in: 19 Canadian Yearbook of International Law (1981), pp. 229 et seq., at pp. 239 et seq.
7/8
few situations in which the use of a ‘small’ tactical nuclear weapon could be compatible with
international law. It can, however, not be fully excluded that the use of such weapons could be
legal under some circumstances. In this context, it is helpful to remember the I.C.J.’s advisory
opinion as far as the existence of a state is concerned.54 The threat of nuclear war has not been
banned at the end of the Cold War. To the contrary, the emergence of new nuclear powers since
then has only increased the risk of a nuclear exchange. Were one nuclear power to commission
tactical nuclear weapons, this risk would be increased dramatically. While the General
Assembly of the United Nations declared every use of nuclear weapons to be incompatible
with international law,55 its non-binding resolution has not yet been followed up by an
international treaty outlawing all nuclear weapons and lacking a clear opinio juris to this effect,
the International Court of Justice’s advisory opinion continues to reflect the state of
international law in this regard. In so far, it appears that the risk of a global nuclear war is a
stronger deterrent than international law alone. It is to be hoped that this deterrent effect will
also prevent the future use of tactical nuclear weapons.
54
International Court of Justice (note 1), para. 97.
United Nations General Assembly Resolution 1653 (XVI), 24 November 1961, http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/167/06/IMG/NR016706.pdf?OpenElement.
55
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