Nuremberg and Nuclear
by David Krieger*, 1996
message of the Nuremberg trials is that individuals are responsible
for what they do, and will be held accountable for committing
serious crimes under international law. At Nuremberg, these serious
crimes included crimes against peace (that is, planning, preparing
for, or participating in acts of aggressive warfare), war crimes,
and crimes against humanity.
One of the great ironies of history
or perhaps it is not such a great irony is that the Charter establishing
the International Military Tribunal at Nuremberg was signed on
August 8, 1945. That was just three months after the German surrender.
More importantly, it was just two days after the first nuclear
weapon was used in warfare on the city of Hiroshima, and one day
prior to a nuclear weapon being used on the city of Nagasaki.
The nuclear weapon used on Hiroshima, with an equivalent force
of some 15 kilotons of TNT, killed some 90,000 people immediately
and some 140,000 by the end of 1945. The bomb dropped on Nagasaki,
with an equivalent force of some 20 kilotons of TNT, killed some
40,000 people immediately and some 70,000 by the end of 1945.
It has been pointed out that the number of people
who died immediately from the use of each of these nuclear weapons
was less than the number of people who died in Tokyo on the night
of March 9-10, 1945 as a result of U.S. bombing raids. This number
is estimated at approximately 100,000. The major difference between
the Tokyo bombings and those of Hiroshima and Nagasaki is that
the former took nearly a thousand sorties to accomplish, while
the destruction of the latter two cities took only one bomb each.
I think it is reasonable to speculate that if the
Germans had had two or three atomic bombs, as we did at that time,
and had used them on European cities prior to being defeated in
the Second World War, we would have attempted to hold accountable
those who created, authorized, and carried out these bombings.
We would likely have considered the use of these weapons on cities
by the Nazi leaders as among the most serious of their crimes.
The irony of history, of course, is that the Germans
did not develop nor use atomic weapons, and thus this issue never
came before the International Military Tribunal at Nuremberg,
or before any other international tribunal. The record of the
past 50 years reflects the consequences of this lack of accountability,
namely, the nuclear arms race pursued by the United States and
the former Soviet Union, which lasted until the end of the Cold
War in approximately 1990.
The question which I want to address is not whether
war crimes were committed at Hiroshima and Nagasaki. Under the
rules of international humanitarian law they were, and they were
also committed by the bombings of London, Coventry, Hamburg, Dresden
and Tokyo. The primary targets of all these bombings were civilians,
and the indiscriminate killing of civilians has always in modern
times been understood to be a clear violation of the laws of war.
Nuclear Weapons and International Law
The more relevant question has to do with where
we stand today. Not long ago, on July 8, 1996, the International
Court of Justice in the Hague issued an opinion on the legality
of the threat or use of nuclear weapons. Actually, two questions
were placed before the Court for advisory opinions. The first
question, posed by the World Health Organization in May 1993,
asked: "In view of the health and environmental effects,
would the use of nuclear weapons by a state in war or other armed
conflict be a breach of its obligations under international law?"
The second question, put to the Court by the General
Assembly of the United Nations in December 1994, asked: "Is
the threat or the use of nuclear weapons in any circumstances
permitted under international law?"
The International Court of Justice found that the
question asked by the World Health Organization, as a legal question,
fell outside the scope of activities of the organization, and
thus declined to accept jurisdiction. On the question posed by
the United Nations General Assembly, however, the Court did find
jurisdiction, and issued an advisory opinion.
In a multi-part answer to the question, the Court
found the following: "...that the threat or use of nuclear
weapons would generally be contrary to the rules of international
law applicable in armed conflict, and in particular the principles
and rules of humanitarian law.
"However, in view of the current state of
international law, and of the elements of fact at its disposal,
the Court cannot conclude definitively whether the threat or use
of nuclear weapons would be lawful or unlawful in an extreme circumstance
of self-defence, in which the very survival of a State would be
In reaching this opinion, the Court dramatically
reduced the possible circumstances in which nuclear weapons could
be threatened or used in conformity with international law. The
Court left open only the slim possibility of legality under "an
extreme circumstance of self-defense, in which the very survival
of a State would be at stake." Even in this circumstance,
the Court did not say that such use would be legal; it said only
that it could not determine legality under these conditions. Judge
Bedjaoui, the president of the Court, said in his declaration
upon releasing the Court's opinion, "I cannot insist strongly
enough on the fact that the inability of the Court to go beyond
the statement it made can in no way be interpreted as a partially-opened
door through which it recognizes the legality of the threat or
use of nuclear weapons."
Judge Bedjaoui went further to describe nuclear
weapons as "blind weapons" that "destabilize, by
their very nature, humanitarian law, the law of distinguishing
in the use of weapons." He continued, "Nuclear weapons,
absolute evil, destabilize humanitarian law in so far as the law
of the lesser evil. Thus, the very existence of nuclear weapons
constitutes a great defiance (challenge) to humanitarian law itself....
Nuclear war and humanitarian law seem, consequently, two antithesis
which radically exclude each other, the existence of one necessarily
supposing the non-existence of the other."
Where does this leave us today? Although the opinion
of the Court is an advisory opinion, it is the most authoritative
statement of international law on this question, and must be taken
seriously. Thus far, however, there have been no statements made
by any of the declared or undeclared nuclear weapons states indicating
that they plan any changes in their nuclear policies as a result
of the Court's opinion.
We know what the Principles of Nuremberg tell
us about individual accountability. The primary principle is that
"Any person who commits an act which constitutes a crime
under international law is responsible therefor and liable to
punishment." The fact that there is no penalty for the act
under internal law does not relieve the person who committed the
act from responsibility under international law. Nor does the
fact that the person acted as a Head of State or as a responsible
government official relieve that person of responsibility. Nor
does the fact that the person acted pursuant to superior orders,
so long as a choice was in fact possible to him, relieve him of
It was the United States, along with the U.K.,
France, and Russia, that created the Nuremberg Principles after
the Second World War by holding Nazi and other Axis leaders accountable
for their crimes under international law. I submit that if we
want to create a world community that lives under international
law in the 21st Century, we must apply the Nuremberg Principles
to one and all, equally and without prejudice. That means we must
apply these Principles to ourselves as well as to others. If the
threat or use of nuclear weapons is, in fact, illegal under international
law in virtually every conceivable circumstance, then we must
act accordingly and neither use nor threaten the use of these
weapons. Instead, we must dismantle our nuclear arsenal subject
to agreement with other nuclear weapons states. In the meantime,
we must explain to all military personnel with responsibilities
for nuclear weapons the criminality under international law attendant
to the threat or use of these weapons.
Military organizations must operate under the law,
and that clearly includes the international law of armed conflict.
If military organizations do not operate under the law, then are
they any better than state-organized thugs? It was for violating
the laws of war at My Lai that Lt. Calley was tried and convicted.
Lt. Calley's crimes, terrible though they were, would pale in
comparison to the crime of again using nuclear weapons on cities
filled with innocent people.
The International Court of Justice added to their
opinion a clarification of Article VI of the Non-Proliferation
Treaty. The Court unanimously found that: "There exists an
obligation to pursue in good faith and bring to a conclusion negotiations
leading to nuclear disarmament in all its aspects under strict
and effective international control."
The Court has clearly indicated that the nuclear
weapons states have an obligation to negotiate in good faith not
only for nuclear disarmament, but for nuclear disarmament "in
all its aspects" and to bring these negotiations to a conclusion.
In the aftermath of the Cold War, we have been moving far too
slowly to attain this goal. It is a necessary goal so that no
other city will ever again have to face the consequences of what
happened at Hiroshima and Nagasaki, and the future of humanity
will not be jeopardized.
The Need for a Permanent International Criminal
Even if the threat or use of nuclear weapons is
unlawful under international law, however, there currently exists
no tribunal where persons committing such acts can be brought
to account. One of the great shortcomings of the current international
institutional structure is the lack of a permanent International
Criminal Court. Two Ad Hoc Tribunals have been created by the
United Nations Security Council one for the former Yugoslavia
and one for Rwanda. The jurisdiction of both of these tribunals,
however, is limited by time and space. It is perhaps ironic that
while the effects of nuclear weapons are unlimited by either time
or space, the jurisdiction of our international criminal tribunals
is so limited.
Were nuclear weapons to be used by accident or
design, the consequences would be horrible beyond our deepest
fears. Nazis and other war criminals were convicted and punished
in part for bringing human beings to the incinerators of the Holocaust.
Nuclear weapons may be conceived of as portable incinerators portable
crematoria, if you will that bring incinerators to the people.
In my view, the silence of the American, Russian, British, French,
and Chinese people in the face of these potentially genocidal
or omnicidal weapons is as disquieting as the silence of the Germans
in the face of Nazi atrocities. Yet none of the people in countries
possessing nuclear weapons today are facing the same fearful authoritarian
rule that the Nazis imposed upon the Germans during World War
For many, perhaps most, people in nuclear weapons
states today, nuclear weapons are not perceived as a critical
issue. They are largely ignored. However, if they were to be used
again, I think future historians if there were any would be very
critical of our lack of commitment to ridding the world of these
We have the opportunity, in fact the responsibility
under the Nuremberg Principles, to speak out against these genocidal
weapons, but for the most part we do not do so. We must break
the silence that surrounds our reliance upon these weapons of
mass destruction. A hopeful sign recently occurred at the State
of the World Forum in San Francisco when General Lee Butler, a
former commander of the U.S. Strategic Command, broke his personal
silence and made a ringing plea to abolish nuclear weapons. "We
can do better," he said, "than condone a world in which
nuclear weapons are enshrined as the ultimate arbiter of conflict.
The price already paid is too dear, the risks run too great. The
nuclear beast must be chained, its soul expunged, its lair laid
waste. The task is daunting but we cannot shrink from it. The
opportunity may not come again."
It is within our grasp to end the nuclear weapons
era, and begin the 21st Century with a reaffirmation of the Nuremberg
Steps That Need To Be Taken
1. The following confidence building measures
proposed by the Canberra Commission on the Elimination of Nuclear
- Taking nuclear forces off alert;
- Removal of warheads from delivery vehicles;
- Ending deployment of non-strategic nuclear weapons;
- Initiating negotiations to further reduce United
States and Russian nuclear arsenals; and
- Agreement amongst the nuclear weapons states
of reciprocal no-first-use undertakings, and of a non-use undertaking
by them in relation to the non-nuclear weapons states.
2. International agreement by the year 2000 on
a Nuclear Weapons Convention that, under strict international
control, would eliminate all nuclear weapons within a reasonable
period of time and prohibit their possession.
3. The establishment by treaty of a permanent International
Criminal Court to hold all individuals, regardless of their rank
or nationality, accountable for acts constituting crimes under
international law. Considerable progress has been made in preparing
such a treaty at the United Nations. It may be hoped that this
treaty will be ready to be opened for signatures in 1998, and
certainly by 1999 when a third International Peace Conference
is convened in the Hague.
* David Krieger is president
of the Nuclear Age Peace Foundation.