suggest that only when such an extensive need for self-defense exists, would the extreme force likely to be associated with even tactical nuclear weapons, possibly be justified “clean” low-yield in terms of the additional force necessary to convince the opposing Party to abandon a political objective of such magnitude. Such an interpretation is strengthened by the suggestion of one scholar that the Court’s decision in the Palestinian Wall Case was meant to resolve the ambiguity regarding the use of nuclear weapons in extreme cases of self-defense that its 1996 advisory opinion has raised. In the Palestinian Wall Case, the ICJ, although acknowledging that both Israel and Palestine each often claim that the very existence of its State is at stake, nonetheless determined they were both an obligation scrupulously to observe the rules of international humanitarian law, one of “under the paramount purposes of which is to protect civilian This understanding is furthermore life.” generally consistent with modern understandings of as the concept has “military necessity,” survived its incarnation: military necessity may not permit the violation of kriegsraison international humanitarian law to the extent that rules lay down absolute prohibitions and do not expressly provide for those circumstances constituting military This is “exception necessity.” because the and customs of warfare are designed specifically for all phases of war. They “rules comprise the law for such claim that they can be wantonly and at emergency,” therefore, “to – the sole discretion of any one belligerent disregarded when he considers his own situation to be – critical, [would mean] nothing more or less than to abrogate the laws and customs of war entirely.” In order for the use of a any weapon to be deemed lawful, the principal of necessity demands that: 1) the weapon is directed towards a legitimate military objective; and 2) the force to be delivered is no more than that which is necessary to enable the acting State to end the
suggest that only when such an extensive need for self-defense exists, would the extreme force likely to be associated with even “clean” low-yield tactical nuclear weapons, possibly be justified in terms of the additional force necessary to convince the opposing Party to abandon a political objective of such magnitude. Such an interpretation is strengthened by the suggestion of one scholar that the Court’s decision in the Palestinian Wall Case was meant to resolve the ambiguity regarding the use of nuclear weapons in extreme cases of self-defense that its 1996 advisory opinion has raised. In the Palestinian Wall Case, the ICJ, although acknowledging that both Israel and Palestine each often claim that the very existence of its State is at stake, nonetheless determined they were both “under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life.” This understanding is furthermore generally consistent with modern understandings of “military necessity,” as the concept has survived its kriegsraison incarnation: military necessity may not permit the violation of international humanitarian law to the extent that rules lay down absolute prohibitions and do not expressly provide “exception for those circumstances constituting military necessity.” This is because the “rules and customs of warfare are designed specifically for all phases of war. They comprise the law for such emergency,” therefore, “to claim that they can be wantonly – and at the sole discretion of any one belligerent – disregarded when he considers his own situation to be critical, [would mean] nothing more or less than to abrogate the laws and customs of war entirely.” In order for the use of a any weapon to be deemed lawful, the principal of necessity demands that: 1) the weapon is directed towards a legitimate military objective; and 2) the force to be delivered is no more than that which is necessary to enable the acting State to end the
Graham_Law-of-Armed-Conflict.docx