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USE OF NUCLEAR WEAPONS IN HUMANITER LAW ENFORCEMENT

PERSPECTIVE

Arimbi Fajari Furqon

Bengkulu University, Indonesia

Email: Arimbifajari12321@gmail.com

ARTICLE INFO

ABSTRACT

Date received : 25 Mei 2022

Revision date : 15 Juni 2022

Date received : 25 Juni 2022

Human life and technological developments are closely related

to the legal awareness of the international community. The

discovery of nuclear weapons for the first time was by the

United States (US). It was used in World War II to attack and

bomb the cities of Hiroshima and Nagasaki in 1945. The

incident resulted in the death of 160,000 (one hundred and

sixty thousand) people, and damage to almost all the

ecosystem. The devastating negative effects resulting from the

use of nuclear weapons were then regulated and contradicted

the norms outlined in Additional Protocol I of 1977, to the 1949

Geneva Conventions which regulates the methods and

methods of war. Although it has been regulated in the 1949

Geneva Conventions (international humanitarian law),

however, it turns out that there are still many countries that

continue to develop nuclear weapons for reasons of national

security. The research method used is a type of normative

juridical research and uses a statutory approach and

conceptual thinking. The results of the study indicate that the

governing norms regarding; research and possession of

nuclear weapons are still discriminatory. In practice, there is a

distinction between a nuclear state and a non-nuclear state.

Furthermore, in the current reality, there are still countries that

are classified as not having good intentions to carry out the

agenda of disarming and stopping the development of nuclear

weapons. Meanwhile, according to the results of this study, to

overcome these problems, it is necessary to have new legal

principles that can be universally binding.

Keywords: nuclear

weapons; methods and

means of war; threats; law

enforcement.

under CC BY-SA 4.0

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INTRODUCTION

The development of technology is inseparable from the development of human

civilization. It was first marked by the existence of the steam engine in the 17th century.

Technology in the field of weapons experienced significant improvements during World

War I and World War II. During World War I and World War II. Nuclear weapons were

first used by the United States in 1945 when it launched bombs at the cities of Hiroshima

and Nagasaki. The bomb that was launched belongs to the category of nuclear weapons

called Fat Man. This weapon resulted in the death toll of 80,000 people and 70,000 injured

in Hiroshima City. While the incident in Nagasaki City resulted in 80,000 deaths and

39,000 injuries.

The impact of using nuclear weapons can result in excessive dangers such as

physical and mental injury to mass death for humans and animals. In the environment,

radioactive particles cause damage to soil, water, and air supplies. Given the excessive

danger posed by the use of nuclear weapons, it is necessary to have regulations regarding

the use of nuclear weapons. In this case, it is regulated by Humanitarian Law to prevent

the impact of the use of nuclear weapons.

Additional Protocol I 1977 The Geneva Convention 1949, namely Article 35

regulates the prohibition of the use of weapons that injure the enemy causing excessive

injury and pain (superfluous injury or unnecessary suffering). This prohibition on the use

of weapons is carried out based on humanitarian principles and the principle of good faith

by the parties. The implementation of these principles such as prohibiting killing or

injuring an enemy who has laid down weapons or no longer has the means to defend

themselves, prohibits killing civilians and protected people and prohibits killing or injuring

the enemy with cruel methods and means, but there are many countries admit that they

have developed nuclear weapons for the security and defense of their countries or for

the sake of their national interests. The countries that have acknowledged possessing

nuclear weapons are North Korea which has acknowledged developing nuclear weapons

on Monday, July 27, 2020. Iran's leader, Ayatollah Ali Khamenei, issued a decree against

the development, production, stockpiling and use of nuclear weapons by the Iranian

government. Furthermore, Syria is known to have developed nuclear weapons for the

first time in 1973. This is contrary to what has been regulated in Article 35 Additional

Protocol I 1977 of The Geneva Convention 1949 because nuclear weapons cause

excessive injury and pain and injure the enemy without limit.

METHOD

The type of research used in this research is normative research. Normative

research is often also called Doctrinal Legal Research, then literature research. The

normative legal research method is defined as "a research method on the rules of law

both in terms of the hierarchy of laws and regulations (vertical) and the harmonious

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relationship of laws (horizontal)"(Marzuki & SH, 2021). Based on the existing doctrine, it

can be concluded that what is meant by normative legal research is one type of legal

research methodology that bases its analysis on applicable laws and regulations and is

relevant to legal issues that are the focus of research (Benuf, 2021).

RESULT AND DISCUSSION

A. Regulations concerning the Use of Nuclear Weapons under International

Humanitarian Law

1. International Agreements

Additional Protocol I 1977 Geneva Convention 1949

Additional Protocol I 1977 was established to regulate the methods of warfare

used by developing countries.binding

legally

as an integral part of the 1949 Geneva

Conventions. This Protocol stipulates that the rights of the parties to the dispute to choose

the means and method of warfare are not unlimited and are also prohibited from using

weapons or projectiles and other means which may result in excessive injury or

unnecessary suffering (Permanasari, 2018). The tools and methods of war that are not

unlimited have an excessive impact in fighting such as excessive pain, so they are

prohibited from being used in this provision.

The use of nuclear weapons in warfare results in the health effects of an explosion

consisting of direct effects, including injury from the explosion itself and the radiation it

produces, and indirect effects, including damage from the explosion. Casualty effects of

nuclear weapons include burns, explosions, ionizing radiation, and thermal radiation. The

consequences of explosive effects include lung damage and ruptured eardrums as well

as the crushing or burning effects of a large-scale nuclear explosion.

The

1968 Non-Proliferation Nuclear Weapons Treaty (

NPT

)

Agreement is the only binding commitment in a multilateral treaty for the purpose

of disarmament by nuclear-armed states. Through the United Nations, this Treaty was

negotiated since 1958 initiated by Frank Aiken, Minister of Foreign Affairs of Ireland.

The first signing was opened in 1968. Finland was the first country to sign. The

NPT came into force in 1970 and is

hard law

on the 191 countries that have ratified it.

In this agreement the parties are divided into two types, namely

Nuclear Weapon State

(NWS)

and

Non-Nuclear Weapon State (NNWS).

The NWS consists of five nuclear-owning

countries, namely France, the People's Republic of China, Russia, the United Kingdom,

and the United States. Meanwhile, NNWS is a non-nuclear country that cannot have

nuclear, consisting of parties other than the NWS. Discrimination over the distribution of

the NWS and NNWS as well as the lack of goodwill from the NWS to carry out nuclear

disarmament on a regular basis has resulted in the failure to achieve the goal of this

agreement, namely a world free from nuclear weapons. The clearly visible distinction of

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rights between NWS and NNWS is in terms of ownership of nuclear weapons where NNWS

is not absolutely allowed to own or develop nuclear weapons, while NWS which already

has nuclear weapons prior to signing the agreement may still have nuclear weapons with

regard to the pillars of disarmament. nuclear.

c. Treaty

on The Prohibition of Nuclear Weapons

2017

/ TPNW)

The TPNW is an agreement that prohibits any state party from developing, testing,

producing, stockpiling, placing, transferring, using and threatening the use of nuclear

weapons, as well as assistance for these activities. This agreement is a follow-up to the

ineffective NPT in terms of world nuclear disarmament.

TPNW is initiated by countries that are part of the NNWS, namely Ireland, Austria,

Brazil, Indonesia, Mexico, Nigeria, South Africa and Thailand. This agreement contains

the contents of the prohibition as well as the commitment of the international community

to realize a world without nuclear weapons (

nuclear weapons free zone

). States parties

will have an obligation to prevent and stop any activities prohibited under the TPNW that

are carried out by persons or in areas under their jurisdiction or control. The TPNW also

requires states parties to provide adequate assistance to individuals affected by the use

or testing of nuclear weapons, activities related to the testing or use of nuclear weapons

(Gopel, 2010).

2. General Law Principles

a. The Principle of Distinction

principle of distinction is the principle that distinguishes between groups that can

participate directly in combat (combatants) on the one hand, and groups that do not

participate and must be protected in combat, namely the civilian population, children,

civilian women, medical personnel, clergy. Based on this principle, when there is an armed

conflict, a distinction must be made

(Kusumo & Tejomurti, 2015).

The impact of nuclear weapons will have an impact on a very wide radius of up to 4.8

km/10 kilotons. With a very wide radius, the use of nuclear weapons will cause casualties

for civilians.

b. The Principle of Proportionality

The principle of proportionality is generally accepted as one of customary

international law. So that every country is fully bound to the application of this principle.

This principle regulates the balance between the principle of military interests and the

principle of humanity. This principle also explains that in order to achieve success in war,

the state may not use civilians as targets or shields in disputes.

The use of nuclear weapons during war is not in line with what is determined by the

Principle of Proportionality because the impacts resulting from their use are not balanced

with the military interests of the parties. Military interests refer to the defeat of the

opposing military, not to cause casualties which are protected in IHL.

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3. The Decision of the International Court of Justice in the Nuclear Weapons Case in

1996

The

Nuclear Weapons

is a dispute submitted to the International Court of Justice

to question the legality of possession and use of nuclear weapons under international

law. On December 19, 1994, the United Nations General Assembly convened resolution

A/RES/49/75K which was adopted by 78 countries who voted in favor, 43 against, 38

abstained and 26 did not vote.

From October 30 to November 15 1995, an oral hearing was held with the

participation of 20 countries, namely Australia, Egypt, France, Germany, Indonesia,

Mexico, Iran, Italy, Japan, Malaysia, New Zealand, Philippines, Qatar, Russia, San Marino,

Samoa, Marshall Islands, Solomon Islands, Costa Rica, United Kingdom, United States

and Zimbabwe (Rhinelander, de Chazournes, Weiss, Neubauer, & Matheson, 1997).

On 8 July 1996 the International Court of Justice gave an

Advisory Opinion

on the

question raised. The International Court of Justice is of the opinion that there is no

international law that explicitly regulates specific prohibitions on the development and

use of nuclear weapons in either international treaties or customary international law.

The court also argued that the use of nuclear weapons is not in line with the principle of

good faith

as part of the international community to use nuclear weapons. The court

further argued that the legality of the use of nuclear weapons can be seen in the

provisions of Humanitarian Law, as well as the existing General Law Principles, such as

in the 1949 Geneva Conventions which have stated the prohibition on the use of certain

weapons in war disputes. Nuclear weapons are included in the provisions of the 1949

Geneva Conventions which stipulate the prohibition of the use of weapons that cause

excessive injury and suffering.

However, if the use of nuclear weapons according to the court is an effort to carry

out the

self-defense of

a country in the face of conflict based on Article 51 of the United

Nations Charter, its use does not violate international law, as long as the state can prove

the elements contained in Article 51. The elements contained in Article 51 of the United

Nations Charter are as follows:

[5]

1. Danger (

present danger

)

Self-defense

is based on the need for instant self-defense and there is no other

choice for such action and there is no time for deliberation about the dangers that will

arise from the upcoming attack.

2. Balance (

proportionality)

Balance refers to the force used in

self-defense

should not exceed the danger

posed by the impending attack.

3. Consent of the UN Security Council (

consent

)

The UN Security Council examines existing treaty and statutory arrangements to

determine whether the action is justified or not.

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B. International Humanitarian Law Enforcement Against the Use of Nuclear

Weapons

1. Organs for Enforcement of International Humanitarian Law against the Use of

Nuclear Weapons.

The enforcement of HII cannot be separated from the role of the international

community in realizing world peace in accordance with the objectives of the United

Nations contained in Article 2 of the

United Nations Charter

. History records that there

have been many efforts made by the international community in realizing the

enforcement of IHL. One of them is to use the diplomatic path of countries in the world

to agree or bind themselves into several international agreements. The international

agreement itself is one of the sources of international law based on Article 38 Paragraph

(2)

International Court of Justice Statute.

The agreement and signing of the Rome Statute carried out by the international

community is one manifestation of the enforcement of international humanitarian law

which in Article 8 of the Rome Statute states that the jurisdiction of the

International

Criminal Court

is to try war crimes. War crimes are comprehensively regulated in the

Rome Statute which indicates whether the crime is within the jurisdiction of the

International Criminal Court

The Security Council as the main body of the United Nations also has an important

role for international peace and security, one of the tasks and authorities of the UN

Security Council is to participate in monitoring the development of countries in the world

in the field of weapons, especially weapons of mass destruction. The Security Council is

the main organ of the United Nations that has

primary responsibility

for maintaining

international peace and security, as stated in Article 24 paragraph (1) of the United

Nations Charter.

The Security Council does not have the right to take action on the possession,

development and testing and use of weapons within a country or in the event of a

violation of disarmament agreements including the NPT. Article 2 paragraph (7) of the

UN Charter expressly does not give the UN the right to interfere in the internal affairs of

a country, however, if an indication is found that the situation may lead to international

disputes, then in accordance with Chapter VI of the UN Charter, the Security Council may

act through the provision of recommendations. to the disputing parties regarding the

existing settlement method, namely the peaceful settlement of disputes based on Article

33 of the United Nations Charter. All decisions taken by the Security Council are not only

binding on all members of the UN but also binding on non-UN member states based on

Article 2 Paragraph (6) of the UN Charter (Suryokusumo, 1997).

The Security Council can impose sanctions on countries that are deemed not to

have good faith in carrying out UN objectives. Until now, there have been many UN

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Resolutions issued based on the recommendations and investigations of the IAEA against

countries that are deemed not to be carrying out international agreements regarding

nuclear weapons. One of them is the UN Resolution which was addressed to Iran for

violating the NPT. UN resolutions are not

hard law

based on Article 38 of

ICJ Statute

but UN resolutions are

soft law

and world countries are obliged to comply with these

provisions as UN member states.

2. State Practices on the Development of Nuclear Weapons

a. United States

As a country that has the nickname "Superpower", the United States has a very

advanced technology compared to other countries in the world. The technology

developed by the United States is not only technology that is used daily but also weapon

technology including nuclear weapons. The United States developed the first nuclear

weapons in World War II in collaboration with Britain and Canada. The United States

tested its first nuclear weapon on July 16, 1945(Hansen, 1995). The United States

became the first country to develop a hydrogen bomb in 1952. The bomb development

program continued in 1992, the program known as the

Stockpile

[8]

The United States

had a nuclear arsenal of 31,175 warheads in 1966.

[9]

Later, the United States redeveloped

about 70,000 nuclear warheads. The United States is a member country of the NPT and

is incorporated as the NWS. The United States as the NWS has the right to store nuclear

weapons as long as it does not transfer nuclear weapons to other countries. This has led

to the emergence of the TPNW, which is an agreement that absolutely prohibits the

proliferation, storage, and use of nuclear weapons. However, none of the NWS countries

or countries that have nuclear weapons are parties to this agreement, including the

United States. This raises the view of countries in the world that the NWS countries do

not want to commit to stopping the proliferation of nuclear weapons. NWS countries still

view nuclear weapons as a diplomatic tool between countries so that there is no intention

to join the TPNW. So that there is no disarmament action against nuclear weapons that

are stored or being developed.

b. India

The development of Indian Nuclear Weapons first took place in 1948 during the

leadership of Homi Bhabha. Bhabha adopts the actions and attitudes of Western countries

to raise India's ranking in the world with nuclear technology (Perkovich, 2001).

India's nuclear spread is almost evenly distributed in all parts of the country.

Defense Research and Development Organization

(DRDO) became one of the institutions

that developed India's nuclear. The institute functions to manufacture weapons systems,

platforms and other defense-based equipment, provide technological solutions to

optimize combat effectiveness and build infrastructure. In addition, India has other

weapons research institutions including the

Armament Research and Development

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Establishment

(ARDE),

High Energy Materials Research Laboratory

(HEMRL),

Center for

Fire

and

Explosive and Environment Safety

Under international law, India is not a party to the NPT Treaty. So that India is not

bound by

hard law

to the NPT Agreement. India rejected the NPT in 1960 on the grounds

that the NPT created an unbalanced world between the NWS and the NNWS towards the

development of nuclear weapons. India will not participate in international control of

nuclear facilities. India is of the opinion that by developing nuclear weapons it can be a

way to maintain the military power of countries that already have nuclear weapons as

defense and security if there are conflicts that will occur in the future.

c. North

Korea North Korea claimed to have functional nuclear weapons in 2005 and carried

out a nuclear test on October 9, 2006.

North Korea conducted a second nuclear weapons

test on May 25, 2009 and a third, higher-yielding test on February 12. 2013. The first test

of a hydrogen bomb was carried out by North Korea on January 5, 2016. The last test of

a nuclear weapons device was carried out by North Korea which caused an earthquake

measuring 6.1 on the Richter scale on September 3, 2017.

The development of nuclear weapons carried out by Korea North is contrary to

what has been regulated in the NPT. Initially North Korea was a party to the NPT, but

North Korea was not part of the NPT Treaty after officially withdrawing in good faith in

2003. North Korea is not legally bound by

this

treaty. North Korea is also not part of the

TPNW Treaty so it is not bound by the Treaty that prohibits developing nuclear weapons.

Thus, North Korea's actions to develop nuclear weapons do not violate several

international agreements regarding the prohibition of developing nuclear weapons.

Although North Korea cannot be subject to sanctions based on the membership of

the NPT and TPNW countries, the Security Council has implemented several resolutions

because they are considered to be disturbing the stability of global peace. One of the

resolutions adopted by the Security Council is Resolution: S/RES/2375 on limiting the

export of refined petroleum products to the country to 2 million barrels per year, cutting

North Korea's oil supply from outside by 30 percent, and prohibiting the sale of North

Korean textiles to foreign countries. overseas.

d. South Africa

South Africa has produced six nuclear weapons since the 1980s. The detection of

a nuclear test in the Indian Ocean occurred in 1979. The test belonged to South Africa.

After that incident, in good faith South Africa signed the NPT Treaty in 1991. South Africa

then stopped all its nuclear weapons proliferation. South Africa, which is the NNWS, has

good faith in carrying out its obligations under the agreement by disarming its nuclear

weapons.

e. Israel

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leadership made the political decision to develop nuclear weapons in 1955. In

September 1996 Israel signed the Comprehensive Nuclear Test Ban Treaty (CTBT),

although it has not yet ratified it. This also applies to the NPT which is not ratified by

Israel. In 2012 the United Nations Security Council held a meeting which was intended

to agree on a resolution to Israel's possession of nuclear weapons but the session did not

find a consensus on this issue.

f. Iran

Iran has had nuclear technology since the time of Shah Muhammad Reza Pahlavi

in 1950. Right in 1955, three years after the launch of the

Eishenhower Plan

on atoms

for peace (

US Atoms for Peace Program

), Iran established the Atomic Center of the

University of Tehran (

Tehran Nuclear Research Center

/ TNRC). Iran established the

Atomic Center with US aid and supplies of uranium, which initially operated at 5

megawatts in 1967. nuclear research center

Asfahan

with a power of no more than 30

kilowatts each (Abd Rahman, 2003). The UN Security Council issued a policy based on

the investigation of the IAEA to increase sanctions against Iran as stated in Resolution

1803 in March 2008. There were additional sanctions imposed on Iran in addition to

economic sanctions. Countries in the world are not only prohibited from conducting export

and import transactions with Iran, but are also encouraged to prevent or deny the entry

of Iranian individuals and entities related to Iran's nuclear program into the territories of

their respective countries (Davenport, 2021). The Security Council subsequently passed

Resolution 1929 in June 2010. In addition to reaffirming the main provisions of previous

resolutions, this resolution also focused on expanding sanctions against all Iranian

activities related to nuclear development. The Security Council also imposed an embargo

on the sale of vehicles and combat equipment, large-caliber artillery, helicopters,

warplanes, and various types of missiles to Iran. The existence of this resolution severely

limits the movement of Iran as a sovereign country to deal with other UN member

countries. However, Iran has not changed its policy regarding its ongoing nuclear

proliferation.

Iran believes that complying with UN Security Council resolutions means admitting

that Iran is guilty and also violating the NPT. As a member of the NPT party, Iran is

obliged to carry out its obligations under the agreement. Iran is a member of the NNWS

which is not allowed to possess and develop nuclear weapons. Thus, if the nuclear

development program has interfered with the interests of other parties, the aggrieved

party can file a dispute against Iran to the International Court of Justice.

CONCLUSION

International treaties governing the use of nuclear weapons are Additional Protocol

I 1977 to the Geneva Conventions of 1949, the 1968 Treaty on the Non-Proliferation of

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Nuclear Weapons, and the 2017 Treaty on the Prohibition of Nuclear Weapons. These

regulations prohibit the use of nuclear weapons in any form. In the Decision of the

International Court of Justice in the Nuclear Weapons case in 1996, it was stated that the

use of nuclear weapons must be in accordance with the existing regulations in

international humanitarian law, but the use of nuclear weapons does not violate

international law if it fulfills the elements in Article 51 of the United Nations Charter,

namely present danger, proportionality, and consent. Enforcement of the use of nuclear

weapons is carried out by several international organs as well as the awareness of

countries that have nuclear weapons. The international organs that can enforce the

prohibition on the development of nuclear weapons are the International Court of Justice,

the International Criminal Court, the Security Council and the International Atomic Energy

Agency (IAEA). South Africa has carried out enforcement, while India, Iran, Israel and

North Korea are still carrying out nuclear weapons activities

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