It has been 81 years since the atomic bombings delivered an unmistakable message. From the ruins of Hiroshima and Nagasaki, humanity was faced with a choice that Martin Luther King, Jr. would later describe as one between “non-violent coexistence or violent co-annihilation.” The intervening decades have made our answer painfully clear.

As a result, today we live as prisoners consigned to a permanent death row, having organized our world not around a commitment to collective sanity, safety, and security but around the perpetual preparation for collective destruction. The nuclear threat has predictably returned to the center of world politics, from Ukraine and Taiwan to Palestine and Iran.

American and Israeli officials have called for the use of nuclear weapons in Gaza, which during the ongoing genocide has already been subjected to equivalent of 13 Hiroshimas. And in the context of the second disastrous and criminal war in the region this century, waged ostensibly, and counterproductively, to preserve a system of nuclear apartheid, President Donald Trump has never disavowed his genocidal threat against Iran that “a whole civilization will die.”

It is therefore clear today that we can hardly take refuge in the comforting fiction that the collapse of the Soviet Union had consigned the specter of atomic holocaust to history. And it is our inability to confront nuclear weapons for what they truly are which has helped produce the present crisis. From their first use, the atomic bombs were immoral and illegal. Within a matter of years, such weapons would come to be described, in the words of their own architects, as a “weapon of genocide,” one which serves no military end beyond the slaughter of civilians.

The supreme irony is that the nuclear age and the postwar international order entered into force together, as the legal regime intended to prevent atrocities was born under the shadow of the mushroom cloud.

As such, states that possess nuclear weapons cannot be understood as guardians of the international order, represented by the five permanent members of the United Nations Security Council, but as its greatest threats, outcasts from law and humanity. They are, in the words of Daniel Ellsberg, adherents to no recognizable ethics other than perhaps “a form of Satanism, a worship of unbridled power that gives national leaders the right to gamble with forces that can undo creation.”

Yet instead of banning the bomb, the postwar international legal order accommodated it, failing to proscribe nuclear weapons, as it has for chemical and biological weapons. The result has been a world in which the capacity to exterminate millions, even billions, of people is treated not as the ultimate international crime but as the ultimate marker of international prestige and a currency of geopolitical power. So long as some states insist upon the legitimacy of their own atomic arsenals then, efforts to abolish them will remain, however well-intentioned, little more than “rearranging deck chairs on the Titanic.”

Why then, despite the obvious reality that nuclear weapons are prima facie illegal, that they violate the most fundamental tenets of international humanitarian law, making a mockery of its principles of distinction and proportionality, has the law failed even to signal its opposition to the bomb?

The Failures of the 1996 ICJ Advisory Opinion

There have been numerous, often tepid, attempts to resolve the contradiction at the heart of the nuclear exception. The most significant came 30 years ago this summer, when the International Court of Justice (ICJ) issued its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Although the Court affirmed that the threat or use of nuclear weapons would “generally be contrary” to international law, it ultimately preserved the nuclear status quo by declining to rule definitively on their legality “in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”

Nuclear states could therefore continue to justify their continued possession of these apocalyptic weapons through the familiar language of military necessity. The result was a legal ambiguity that left nuclear powers free to claim a right to initiate nuclear war in response to an asserted existential threat, as countries like the United States and Israel regularly inflate to advance their imperial policies. The law would then be left to determine, only after the fact, assuming any courts remained amid the ruins, whether the slaughter of millions of civilians had, in fact, been permissible.

But why did the World Court equivocate at such a critical historical juncture? The Cold War had recently ended, and with it seemingly the geopolitical and ideological confrontation that had long legitimized the logic of mutually assured destruction. Arms reduction agreements were underway, and several countries were abandoning their nuclear ambitions. A path toward the elimination of nuclear stockpiles appeared, however briefly, to be within reach.

Yet as scholars have argued, this was less a missed opportunity to challenge the nuclear powers than an ideological inability to confront the broader questions posed by nuclear weapons. A legal order ostensibly designed to restrain violence had, from its inception, collided with weapons that defy any standard of morality and legality. Faced with this contradiction, the court retreated into an act of institutional self-preservation. The effort has proved futile, as evidenced by the continuing impunity of powerful states and increasingly brazen attempts to dismantle the broader framework of international law.

Nonetheless, as Martti Koskenniemi has argued, had the ICJ actually declared nuclear weapons categorically illegal, it would have “put the court and the whole system of law it represents in a collision course with the politico-military system of the nuclear age.” In this confrontation, “the law could hardly prevail.” Recognizing this, “an opinion underwriting an absolute prohibition would have condemned the law to irrelevance already in advance.”

More fundamentally, the international legal system could scarcely have resolved the question. The imperatives of great-power politics had long stunted the court's ability to function. By elevating military necessity into a doctrine through which states could justify their actions, the law came to function not as a constraint but as a source of legitimacy for state violence. As Koskenniemi observes, citing philosopher Thomas Nagel, once mass violence can be deemed permissible under certain criteria, other considerations can then “be brought to bear to ease the consciences of those responsible for a certain number of charred babies.”

The Birth of the Bomb and the “International Order”

This failure was not the World Court’s alone. The problem had been embedded in the postwar legal order from the beginning. On August 8, 1945, the United States, the Soviet Union, the United Kingdom, and France ratified the London Charter establishing the International Military Tribunal at Nuremberg. Hours later, the United States destroyed Nagasaki with a second atomic bomb, just three days after........

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