CounterPunch Exclusives

CounterPunch Exclusives

The Genocidal Weapon and the Nuclear Exception

Photograph Source: Jakub Hałun – CC BY 4.0

It has been eighty-one 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 “nonviolent 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 thirteen 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, 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, 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.

As such, states that possess nuclear weapons cannot be understood as guardians of the international order, represented by the five permanent members of the UN 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 thirty years ago this summer, when the International Court of Justice 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........

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