Nuclear Weapons and Law

By Arthur Selwyn Miller; Martin Feinrider | Go to book overview

3.

The Laws of War and Nuclear Weapons *

Elliott L. Meyrowitz**

With the bombing of Hiroshima and Nagasaki, the world witnessed the use of a weapon unprecedented in its destructive power. 1 The development and eventual use of those atomic bombs irrevocably changed the nature and objective of war. 2 Since 1945, humanity has lived on the edge of a precipice, with human history literally hanging in the balance. Indeed, today's nuclear weapons arsenals have the distinct potential for annihilating a substantial portion of the earth's population, devastating and contaminating vast areas of the earth's surface and producing unpredictable and uncontrollable biological and environmental consequences—all of which could occur within a matter of minutes. 3

In this “nuclear age, ” more than any other time in history, the civilian population has become directly and indirectly the primary object of destruction. 4 While the effects of war have always fallen to some degree upon civilians, it is the magnitude of the destruction of the civilian population during a nuclear war that overwhelms the senses. 5 Yet, the indiscriminately destruc-

* Reprinted, with permission, from the Brooklyn Journal of International Law, Volume 9, Number 2 (1983).

** Adjunct Professor of Law, Benjamin N. Cardozo School of Law of Yeshiva University; Vice-Chairperson, Lawyers' Committee on Nuclear Policy. An earlier version of this article was presented at the 1981 Annual Meeting of the American Society of International Law.

1. For a comprehensive account of the destructive impact of atomic weaponry, see COMMITTEE FOR THE COMPILATION OF MATERIALS ON DAMAGE CAUSED BY THE ATOMIC BOMBS IN HIROSHIMA AND NAGASAKI, HIROSHIMA AND NAGASAKI: THE PHYSICAL, MEDICAL AND SOCIAL EFFECTS OF THE ATOMIC BOMBINGS (1981).

2. During the nineteenth century, there developed a school of thought which believed that the increasing destructiveness of weapons would bring an end to war. The paradox is that quite the opposite has occurred. On this point, see Roling, Arms Control, Disarmament and Small Countries, 31 IMPACT 97 (1981) and Smith, Modern Weapons and Modern War, THE Y.B. OF WORLD AFFAIRS 224-25 (1955); See also M.WALZER, JUST AND UNJUST WARS (1977).

3. For an excellent assessment of the possible human and ecological consequences of nuclear war, see ROYAL SWEDISH ACADEMY OF SCIENCES, Nuclear War: The Aftermath, 11 AMBIO 76 (1982).

4. For a discussion whether the protection of civilians is consistent with “total war”, see Roling, The Significance of the Laws of War, CURRENT PROBLEMS OF INTERNATIONAL LAW: ESSAYS ON U.N. LAW AND ON THE LAW OF ARMED CONFLICT 142-44 (A. Cassese ed. 1975). See also J.MOORE, INTERNATIONAL LAW AND SOME CURRENT ILLUSIONS AND OTHER ESSAYS 1-15 (1924).

5. For an analysis of the effects of a full range of nuclear attacks, see OFFICE OF

-19-

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