The 123 countries that oversee the International Criminal Court are meeting in the Hague this week. With Russia’s threats to use nuclear weapons against anyone intervening in the Ukraine conflict and responses from other governments that imply possible retaliation with nuclear weapons, the idea of using nuclear weapons is being normalized. Yet any use of a nuclear weapon would cause widespread civilian injury, loss of life, and severe environmental damage, which the ICC’s founding documents consider to be a war crime.
Any use of nuclear weapons, however “limited” or “tactical”, would have wide-ranging and catastrophic humanitarian consequences. There is no way to use a nuclear weapon without causing widespread civilian injury, loss of life, and severe environmental damage. The immense and indiscriminate destructive power of nuclear weapons and their wide-ranging catastrophic humanitarian consequences would constitute a war crime under several provisions of the ICC’s founding document the Rome Statute.
ICAN is attending the Assembly of States Parties to draw attention to the fact that while the use of nuclear weapons is not explicitly covered by the Rome Statute, because the weapons are designed to cause severe and devastating harm to civilians and civilian infrastructure that is impossible to mitigate, several provisions would make their use a war crime or a crime against humanity.
ICAN Executive Director Beatrice Fihn said “The listing of war crimes in the ICC Statutes is meant to prohibit anyone from committing these horrifying acts- and face the consequences of the court if they do. Anyone who authorizes or carries out a nuclear attack would become a war criminal, and the ICC’s statutes are both an important deterrent and accountability measure against illegally threatening to use weapons of mass destruction.”
Russia has used the threat of use of nuclear weapons as a means to facilitate its illegal aggression against Ukraine and to restrict the range of possible responses from the international community, thereby providing a cover for war crimes and violations of human rights. Any of the world’s nine nuclear-armed states could employ a similar strategy at any time.
With the entry into force on 22 January 2021 of the United Nations Treaty on the Prohibition of Nuclear Weapons (TPNW), nuclear weapons are now comprehensively prohibited under international law, in exactly the same manner that chemical and biological weapons are prohibited by the 1993 Chemical Weapons Convention and the 1972 Biological Weapons Convention respectively. This new legal instrument provides an opportunity for states parties to the Rome Statute to consolidate their treatment of weapons of mass destruction, and add nuclear weapons, any device which is capable of releasing nuclear energy in an uncontrolled manner to the list of war crimes.
Download ICAN’s briefing paper here.