The Ukraine crisis, the nuclear threat and the ICJ Opinion of 1996
| Published date | 01 May 2023 |
| Author | Peter Hilpold |
| Date | 01 May 2023 |
| DOI | http://doi.org/10.1111/1758-5899.13201 |
396
|
Global Policy. 2023;14:396–402.wileyonlinelibrary.com/journal/gpol
1 | AN EARLY WARNING
To read today Professor Mearsheimer's analysis of
‘The Case for a Ukrainian Nuclear Deterrent’, published
nearly 30 years ago (Mearsheimer,19 93, pp. 50 – 66),
might leave a somewhat ghastly impression: How is it
possible that a political analyst, shortly after Ukraine
had become independent, developed su ch an accurate
prediction of the events that would unfold, slowly but
inevitably, in the following decades? A development
that would end up in the disastrous Russian aggres sion
against Ukraine (Mearsheimer,19 93, pp. 50– 66)? At
the center of Professor Mearsheimer's prophecy stood
the prescience that abandoning her nuc lear deterrent
capacity would expose Ukraine, sooner or later, to an
invasion by her ancient nemesis Russia. Contrar y to
what was argued in the early 1990s, it is not a nuclear
armed Ukraine who causes a threat of an atomic war
but rather the unilateral access to these arms by the
aggressor, emboldened also by loopholes left o pen by
the ICJ Opinion on the ‘Legalit y of the Threat or Use of
Nuclear Weapons’ of 1996.
The nuclear threat is perhaps one of the most in-
sidious elements overshadowing the whole Ukrainian
crisis. It is difficult to grasp: Initially, not even Russian
President Putin wanted to throw in the nuclear option
explicitly. After a series of military defeats of the Russian
troops in September 2022, Putin became more expli cit
as to this threat by stating the following:
If the territorial integrity of our country is
threatened, we will without a doubt use
all available means to protect Russia
and our people. […] This is not a bluff
(Hennigan,2022).
This is still no clear announcement that the nuc lear
option is on the table, but it comes clos e to such a dec-
laration. No doubt, from the beginning of the invasion on
February 24, 2022, the nuclear threat was there condi-
tioning all other options by Ukraine, its neighbour s and
potential allies. This conditioning imposes a restraint on
the help extended to Ukraine and to the very measure s
of self- defence available to this countr y, a non- nuclear
POLICY INSIGHTS
The Ukraine crisis, the nuclear threat and the ICJ Opinion
of 1996
PeterHilpold
Received: 10 Januar y 2023
|
Revised: 2 March 2 023
|
Accepted: 2 Marc h 2023
DO I: 10 .1111/17 58- 589 9.13 201
This is an open ac cess article under t he terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which perm its use and distributi on in
any medium, provi ded the original work is p roperly cited, the use i s non-commercial a nd no modifications o r adaptations are made.
© 2023 The Author. Global Policy publishe d by Durham University an d John Wiley & Sons Ltd.
University of In nsbruck, Innrain 52,
A- 6020, Innsbruck, Austria
Correspondence
Peter Hilpold, Un iversity of Innsbruc k,
Innrain 52, A- 6020 Innsbruck, Austr ia.
Email: peter.hilpold@uibk.ac.at
Abstract
The Russian aggression against Ukraine has un leashed new fears of a nuclear
war and also due to direct and indirect threats by the Russian si de. As a con-
sequence, it seems appropriate to re- open the debate about the legality of the
threat or use of nuclear weapons, a debate led to somewhat inconc lusive results
by the ICJ Opinion of 1996 on the ‘Legality of the Threat or Use of Nu clear
Weapons’. If some elements of rationality are left in this war, nuclear weapons
will not be employed in Ukraine. The major casualty of this r hetoric could, how-
ever, be the far- reaching de- legitimisation of nucl ear warfare achieved in the
past. Therefore, the time has come to re- examine the ICJ assessments of 1996
and to take a clearer stance in this regard which sh ould be more appropriate as
to the exigencies of modern international soc iety. It is argued here that now the
ICJ would come to different conclusi ons if seized again with the same questions
as in 1996.
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