Introduction:

International humanitarian law is viewed as perhaps the oldest branch of public international law. The following words such as the law of armed conflict, Jus in bello, and IHL are often used as synonyms. The integration of international humanitarian law and a nuclear weapon is a branch of law that defines legal requirements and boundaries of the use of nuclear weapons[1]. The international humanitarian laws have their roots in treaties, customs, and general principles of laws.  It is particularly set in the form of treaties and involves participation from various states. The aim of IHL is to protect humankind from cruelty, suffering, and destruction to build a foundation of peace.[2]

Meaning:

International humanitarian law is the framework of rules of international law that governs the armed conflicts which in protect wartime protects the states which are no longer involved in the hostilities. These rules rely on International Law and Geneva Convention of 1949 and as such a part of International laws. These rules are binding on the states (means countries) and parties involves in the hostilities. the basic reason behind the formation of these rules is that even wars are conducted with rules. Though it sounds like human rights and humanitarian laws are similar but it has a difference

Background:

The International Humanitarian Law is also referred to as “ius in bello” currently and deals with the conduct of warfare. The International Committee of the Red Cross is considered as its guardian and the promoter. And defines it as “International humanitarian law is part of the body of international law that governs relations between states. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities”[3] there are two ways in which history of international humanitarian law can be understood:

1. story of war and law in the context of humanitarianism

2. Story of imperialism and oppression

The history of laws of international humanitarianism tells that laws related to war have always existed to reduce the catastrophic destruction that occurs out of the war. And it is not only considered as a Western concern but other nations such as India, China, Japan, and Islamic regions have testified the same. It is after the 19^th century the codification of laws began and the international humanitarian law came into existence. The Lieber Code that conducts the regulations of the American Civil War is the very first instance of codification of laws related to war. The Henry Dunant who was a Swiss citizen was surprised seeing the suffering of soldiers and was inspired by Humanitarianism found the Red Cross Movement, which later became the promoter of international humanitarian law. later Dunant instigated of Geneva Convention 1864 for “Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field. This convention started the tradition of Geneva traditions and history continues with a long list of following conventions: the Hague Convention 1907, the Geneva Convention 1949, and Additional Protocols.[4] The other story that revolves around the history of oppression and imperialism. The colonial phase showed the history in which the western world imposed negatively over human values that opened humans to war and suffering.[5]

Where it is found?

The international humanitarian law is majorly found in Geneva Conventions 1949. Almost every state agreed to be a part of this convention. This convention is supplemented by two other conventions that are: “additional protocols of 1977 that protect victims of armed conflicts.” And other agreement prohibits the use of weapons and military tactics that includes:[6]

·       the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;

·       the 1972 Biological Weapons Convention;

·       the 1980 Conventional Weapons Convention and its five protocols;

·       the 1993 Chemical Weapons Convention;

·       the 1997 Ottawa Convention

·       the 2000 optional protocol to the convention of the rights of the child on the involvement of children in armed conflicts.

Nuclear Weapons and International Humanitarian Laws:

The presence of nuclear weapons creates a number of concerns in an international arena. The main concerns are related to the impact of these weapons on humankind and civilians’ areas, and their effect on the environment. their presence in Hiroshima and Nagasaki in 1945 showed that the effect of nuclear weapons is long-lasting due to heat and radiation. The amount of destruction resulted out of the use of nuclear weapons causes serious questions on its compatibility with international humanitarian law. International humanitarian law does not prohibit nuclear weapons. But their use is limited by the rules of IHL which govern how weapons may be used and measures needed to be taken to reduce its impact on civilians.[7]

Following are the rules that govern the use of nuclear weapons:

·       Prohibition on attacking civilians and civilians’ areas: It is also known as the rule of distinction that requires the parties to differentiate between civilians and combatants, and civilian objects and military objectives. Therefore, attacks are prohibited on civilians and civilians’ objects. 

·       Prohibition on indiscriminate attacks: This standard restricts the utilization of weapons that are not, or that can’t be, directed at a specific military objective or that have impacts that cannot be constrained as required by IHL.

·       The rule of proportionality in the attack: as per this rule there is a need to take the assessment on the amount of destruction that may happen due to the release of a nuclear weapon.

·       Environmental protection is to be considered: preservation of the environment and all precautions must be taken to avoid and minimize the damage that may occur in the decision to use nuclear weapons. Thus, potential destruction on the environment must be taken into account.

·       The duty to take precautions that are feasible in the attack: following parties under conflict should take feasible precautions in the choice and methods of warfare with a view to avoid and minimize the loss of civilian life and injuries to civilians and their objects.

Views of International Court of Justice on Nuclear Weapons and International Humanitarian Laws:

As the fact is already known that nuclear weapons have a severe effect on nearby populated areas. The ICJ has given its view on the same in 1996 on the legality of nuclear weapons:

“[The Court] also notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet.”[8]

The above judgment raised serious concern regarding the use of nuclear weapons even with the IHL recommendations. Because using such an explosive device would result in catastrophe as it releases heat and radiations. There is a serious threat of damages to the environment as well. [9]

The Environmental Law for Nuclear Weapons:

International humanitarian law and environment:

The best way of analyzing the environmental effect of nuclear weapons is from the lens of International Humanitarian Laws. Through this approach, we can do a detailed assessment of the environmental coverage of some jus in bello instruments and rules. on the same, the ICJ stated its opinion: the issue is not whether the treaties relating to the protection of the environment are or are not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict. … The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defense under international law because of its obligations to protect the environment.[10]

All stages of nuclear weapons from its production, development, and testing cause pollution as it contains radioactive substances and hazardous chemicals. The environmental treaties are distinguished as per the environmental sphere that is an atmosphere, hydrosphere, lithosphere, and biosphere. The radioactive substances present in nuclear weapons can damage any of these layers. The state that causes pollution founds in breach of the treaty that protects the following spheres.  Thus, the state that originates pollution is subject to environmental litigation for noncompliance with International obligations.[11]

Thus, it is to be focused that there is no signified rule under international humanitarian laws regarding nuclear weapons. But IHL tries to restrict the use of weapons even when it is legally valid. But the use of mass weapons is restricted as its use cannot comply with IHL.

Nuclear weapon-free world:

The danger posed by nuclear weapons is always a center of attention in the UN. In 1946 for the first time in the UN, the goal of eliminating weapons was put forward. Over the last few years, the attempt to do so has been put forth. But still, there is no restriction on nuclear weapons under international treaty laws. States do have the intention of strengthening peace have several agreements to protect their nations from nuclear weapons and forming nuclear-weapon-free zones:

Following are some treaties:

·       Treaty of Tlatelolco (1967) prohibits nuclear weapons in Latin America and the Caribbean;

·       The Treaty of Rarotonga (1985) in the South Pacific;

·       The Treaty of Bangkok (1995) in Southeast Asia

·       The Treaty of Pelindaba (1996) in Africa; and

·       The Treaty of Semipalatinsk (2006) in Central Asia

Indian Perspective on International Humanitarian Law:

International humanitarian law is part of international law. This law protects the countries which are not a part of hostilities. India is obliged by some International conventions and treaties under International Law. The UDHR declares that “all human being is born free and equal in dignity and rights. They are endowed with reason and conscience. They should act towards one another is a spirit of brotherhood.” But India later passed the Geneva Convention Act, 1960 under Article 253 of the Indian Constitution. Also, the misuse of the Red Cross was prohibited and it also prescribed the punishments for breach of convention 1949. India is not a part of Additional Protocols of 1977 so, India does not allow access to detainees, but it allowed ICRC access to terrorism affected areas. The International Criminal Court in India can only take any measure when the Indian justice system is not in existence or not been able to deal with crimes.[12]

India has propagated disarmament in history. But after getting challenges from neighboring countries Indira Gandhi agreed on testing of weapon and in 1974 nuclear device was tested in Pokhara. India changed its strategies through India in a philosophical perspective wanted disarmament but practically it became a challenge. 

Conclusion:

the legality of nuclear weapons is a controversial topic. The basic questions revolve around this are whether it is legal to use a nuclear weapon or giving threat of its use. The number of laws that exist already prohibits the use of nuclear weapons in light of its ignorance towards the humanitarianism and environment. The catastrophe has horrible suffering and destruction which threatens humankind. Therefore a treaty banning nuclear weapons is urgently required.