What if “Final Warning” Is Truly Final? Russia’s Change in Nuclear Policy and International Law

In Greek mythology, gods often exhibited fierce, unapologetic displays of power, with Zeus’s thunderbolts symbolizing a force that was both feared and revered. In contemporary geopolitics, Russia’s stance under Vladimir Putin echoes this mythic imagery of unyielding dominance. As tensions escalate in the Russia-Ukraine war, Putin’s recent proposed changes to Russia’s nuclear doctrine reflect a dangerous shift—from rhetoric to a tangible threat that the world cannot afford to dismiss. Unlike China’s oft-repeated “final warnings,” Russia’s warnings signal a genuine willingness to act, especially in response to Western support for Ukraine’s missile capabilities. The Kremlin’s relaxation of its nuclear threshold underscores a readiness to defend sovereignty with nuclear force, posing catastrophic consequences.

Historical precedents shed light on the legal ambiguities surrounding nuclear threats. During the Korean War, President Truman’s cryptic assertion that the U.S. would take “whatever steps necessary” lacked specificity, making it difficult to assess it under international humanitarian law (“IHL”). Similarly, Putin’s nuclear threats perpetuate legal uncertainty to an extent, however, it’s not ambiguous in totality. These ambiguities often serve strategic purposes—deterrence thrives on uncertainty. However, this raises the question: should general threats of nuclear use be scrutinized under IHL? Vague threats, by their nature, evade definitive legal evaluation, complicating their treatment under international law.

The Dual Framework of International Humanitarian Law (IHL)

IHL applies during armed conflicts, regulating the means and methods of warfare to minimize suffering. When it comes to nuclear weapons, there are two dominant perspectives. The International Court of Justice’s (ICJ) 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons suggests that a nuclear threat’s legality hinges on whether the actual use would comply with IHL. Conversely, another viewpoint contends that IHL primarily governs specific threats—such as those promising annihilation or aimed at terrorizing civilian populations.

In the case of the Russia-Ukraine conflict, the latter view might offer a more defensible framework. The 1977 Additional Protocols to the Geneva Conventions do not inherently prohibit threats of nuclear use unless they violate specific prohibitions like intentionally targeting civilians. Vague threats, such as those issued by Putin previously, may not clearly fall under these prohibitions. However, the legal landscape shifts when these threats move beyond rhetoric and become more concrete, as seen with Russia’s changes to its nuclear doctrine.

Jus Ad Bellum: A Pretext for Nuclear Action?

Jus ad bellum, governing the right to engage in war, is enshrined in Article 2(4) of the United Nations Charter, which prohibits the threat or use of force except in self-defense (Article 51) or with Security Council authorization. Russia’s new nuclear policy, which lowers the threshold for nuclear deployment in response to perceived existential threats, poses a challenge to these legal norms.

Russia can argue that Western support for Ukraine, particularly the provision of long-range missiles, constitutes an existential threat, justifying a nuclear response. However, this argument faces significant legal hurdles. The ICJ’s 1996 opinion emphasized that even in self-defence, the use of nuclear weapons would likely violate international law due to their indiscriminate effects and disproportionate harm. While nuclear weapons are not categorically illegal, their use must satisfy the stringent criteria of necessity and proportionality under customary international law. Given the current scale of the conflict in Ukraine, it is difficult to see how a nuclear response would meet these requirements. The provision of missiles, while militarily significant, does not seem to rise to the level of an existential threat.

Jus In Bello: Understanding the flaw

Jus in bello, which governs conduct during warfare, requires combatants to distinguish between military targets and civilians, avoid unnecessary suffering, and adhere to proportionality. Nuclear weapons, by their nature, violate these principles. Their indiscriminate impact—devastating civilian populations, infrastructure, and the environment—renders their use almost certainly unlawful under IHL. Central to this framework are the principles of distinction, proportionality, and necessity, which require that combatants differentiate between military and civilian targets and avoid excessive harm to civilians. Nuclear weapons, by their nature, violate these principles. Their indiscriminate effects cause destruction far beyond specific military targets, impacting civilian populations, infrastructure, and the environment.

Under Additional Protocol I to the Geneva Conventions, attacks that cause excessive civilian harm compared to the anticipated military advantage are prohibited. Given the catastrophic humanitarian impact of nuclear weapons, their use by Russia in Ukraine would breach these principles. The ICJ’s 1996 Advisory Opinion noted that the use of nuclear weapons would generally be incompatible with jus in bello’s core tenets of distinction and proportionality.

Unravelling the International Treaties

International law views nuclear weapons through a lens of inherent unlawfulness, primarily due to their indiscriminate effects and long-term environmental damage. Beyond IHL, international treaties such as the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) and the Treaty on the Prohibition of Nuclear Weapons (“TPNW”) further constrain the use of nuclear weapons. Although Russia is not a signatory to the TPNW, which calls for the total elimination of nuclear weapons, it remains bound by its obligations under the NPT and the lowering of Russia’s nuclear threshold contradicts disarmament obligations under Article VI.

While Russia may invoke deterrence as a defense, international law does not explicitly condone the policy of nuclear deterrence. Article X of the NPT allows states to withdraw if their “supreme interests” are jeopardized, a clause that Russia might interpret to justify its policy changes. However, withdrawal from the NPT does not exempt Russia from obligations under customary international law and IHL, particularly the principles of proportionality, necessity, and distinction. Notably, even a threat of use of Nuclear arsenal may amount to a crime under Internation law, as concluded by UN Human Rights committee as it endangers Rights to Life.

Russia’s Nuclear Doctrine: “Escalate to De-escalate”

A cornerstone of Russia’s nuclear strategy is its “escalate to de-escalate” doctrine—threat of using nuclear strikes to compel adversaries to back down in conflict.  The “escalate to de-escalate” doctrine, while rhetorically tied to defense, is premised on a broader nuclear posturing that has destabilizing implications for global security. By suggesting that nuclear weapons could be used to achieve de-escalation in conventional warfare, Russia departs from the traditional deterrence model that reserves nuclear weapons for deterring or responding to a nuclear attack. Instead, it presents nuclear strikes as a strategic option in non-nuclear conflicts, thereby lowering the threshold for nuclear use. This recalibration is particularly concerning given that Ukraine is not a nuclear-armed state, which raises questions about the legality and ethics of Russia’s potential use of nuclear weapons in this conflict.

Moscow might argue that such a strike would be a last resort to defend existential interests, aligning it with Article 51 of the UN Charter on self-defense. However, this argument falters upon scrutiny as argued above. Jus ad bellum requires any use of force to be both necessary and proportional, criteria that nuclear weapons, with their catastrophic consequences, cannot meet. Even a limited strike in Ukraine would cause disproportionate harm to civilians and the environment, outweighing any military gains. Additionally, Russia’s nuclear rhetoric contradicts the disarmament goals of the NPT, which obligates nuclear states to pursue disarmament in good faith.

The Crux: A Shift with Catastrophic Consequences

Russia’s recent nuclear policy change, juxtaposed with growing Western military support for Ukraine, presents profound legal and humanitarian challenge. While Russia may attempt to justify its position under jus ad bellum, the use of nuclear weapons would almost certainly violate jus in bello. The indiscriminate nature of these weapons, their disproportionate harm to civilians, and their long-term environmental damage render them incompatible with the principles of IHL. Its usage also undermine decades of global non-proliferation efforts. It sets a dangerous precedent, suggesting that nuclear weapons can be used to resolve territorial disputes—a stance contrary to the very purpose of the NPT. The possibility of Russia using nuclear weapons in Ukraine presents one of the gravest threats to international peace and security since the end of the Cold War.

Concluding Remarks

In all and all, analysing the Russia’s nuclear policy shift through the lens of Greek mythology, I find a stark reflection of Zeus’s thunderbolts—symbols of immense power wielded without restraint. Just as the ancient gods played with the fate of mortals, so too does the Kremlin toy with the delicate balance of international peace and security. Putin’s rhetoric around nuclear use serves as a modern embodiment of the catastrophic potential that looms over contemporary geopolitics. The transition from mere threats to a potential willingness to employ nuclear arms marks a perilous shift, reminiscent of the fateful decisions made by mythological figures whose hubris led to their downfall.

Ultimately, the interplay between geopolitical realities and the ancient lore of power dynamics raises profound questions: Can the specter of nuclear conflict be effectively governed by legal frameworks that were not designed for such existential threats? As we navigate this precarious landscape, it becomes imperative for the global community to seek clarity and consensus on the implications of nuclear rhetoric and policy. The echoes of myth remind us that unchecked power—whether in the hands of gods or world leaders—can lead to final catastrophes, urging us to act decisively to prevent a reality where the thunderbolts of war become all too real. The humanitarian and environmental costs of such a policy shift would be draconian, if nuclear weapons deployed in war, not just for Ukraine but for the entire global order.

[Photo by Vitaly V. Kuzmin, via Wikimedia Commons]

The views and opinions expressed in this article are those of the author.