The International Court of Justice, the highest and most authoritative court in the world, has stated that the use of nuclear weapons would be illegal if such use violated international humanitarian law. Failing to distinguish between civilians and combatants would be illegal, as would any use resulting in unnecessary suffering. Additionally, the Court found that any threat of such use would also be illegal. It is virtually impossible to imagine any use or threat of use that would not violate international humanitarian law.
US nuclear weapons policy fails to meet the standards of international humanitarian law and to live up to its treaty obligations in the 1970 Nuclear Non-Proliferation Treaty. Until the issue of US nuclear weapons policy can be properly litigated in in a US domestic court, US policies related to the threat or use of nuclear weapons need to be put on trial in the most important court in the world, the court of public opinion. It is US citizens who may well determine the fate of the world, by their action or inaction on this most critical of all issues confronting humanity.
1. The US has failed to fulfill its obligation to engage in good faith negotiations for nuclear disarmament.
The Nuclear Non-Proliferation Treaty obligates the parties not only to prevent the proliferation of nuclear weapons to other countries, but also obligates good faith negotiations to achieve nuclear disarmament by the five nuclear weapons states parties to the treaty: the US, Russia, UK, France and China. In interpreting this part of the treaty, the International Court of Justice stated in a 1996 Advisory Opinion, “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.” It has not been the policy of the United States to pursue such negotiations despite the passage of more than 40 years since this treaty entered into force and more than 20 years since the Cold War came to an end.
2. The US has failed to fulfill its obligation to engage in good faith negotiations to achieve a cessation of the nuclear arms race at an early date.
The Nuclear Non-Proliferation Treaty also obligates parties to the treaty to engage in good faith negotiations for a cessation of the nuclear arms race at an early date. But rather than negotiating to bring an end to the nuclear arms race, the US has continued to modernize its nuclear weapons, their delivery systems and the infrastructure that keeps the arms race alive. Doing so has been costly, provocative and illegal under international law.
3. The US threatens the mass annihilation of the human species (omnicide).
The consequence of a large-scale nuclear war could be the extinction of most or all of the human species, along with other forms of complex life. This would be a most egregious violation of international humanitarian law. In fact, it would undermine the very foundation of the law, which is the protection of innocent individuals from harm. The indiscriminate nature of nuclear weapons and policies that threaten their use, such as nuclear deterrence policy, cannot be made to conform to the law, since any use of these weapons would cause a humanitarian disaster beyond our capacity to respond to the ensuing suffering and death.
4. The US is recklessly endangering life.
Certain policies of the United States may be viewed as recklessly endangering life on the planet. These policies include reliance on its land-based missile force, maintaining nuclear weapons on high-alert status, launch-on-warning and first use of nuclear weapons. Land-based missiles are attractive targets for attack in a time of tension between nuclear powers. Maintaining the weapons on high alert and a policy of launch-on-warning could result in a launch in response to a false warning, with all attendant consequences of retaliation and nuclear war. Although not well known to US citizens, their government has always maintained a policy of possible first use of nuclear weapons, rather than a policy of no first use.
5. The US is committing crimes against the environment (ecocide).
The effects of nuclear war and its preparations cannot be contained in either time or space. Radiation knows no boundaries and will affect countless future generations by poisoning the environment that sustains life. The effects of nuclear war on the environment would be severe and long lasting and would include – in addition to blast, fire and radiation – global nuclear famine, even from a regional nuclear war.
6. The US is committing crimes against future generations.
The future itself is put at risk by nuclear weapons policies that could lead to nuclear war, and where there are nuclear weapons the possibility of nuclear war cannot be dismissed. A nuclear war would, at best, deprive new generations of the opportunity for a flourishing and sustainable life on the planet. At worst, such a war would end civilization and foreclose the possibility of human life on Earth.
7. The US has contaminated indigenous lands.
Nuclear weapons production, testing and the storage of long-lived nuclear waste have largely taken place on the lands of indigenous peoples. The Hanford Nuclear Reservation, located on the reservation of the Yakama Indian Nation, is where the US produced the plutonium for some 60,000 nuclear weapons. It is one of the most environmentally contaminated sites on the planet and the Yakama Indians, who were granted hunting and fishing rights in perpetuity in an 1855 treaty, have suffered disproportionately. The US has also contaminated the lands of the Western Shoshone Nation and the Marshall Islands with nuclear and thermonuclear weapons tests.
8. The US has breached the trust of the international community.
The Marshall Islands were the Trust Territory of the United States from the end of World War II until they gained their independence in 1986. Between 1946 and 1958, the US tested 67 nuclear and thermonuclear weapons in the Marshall Islands with the equivalent explosive power of one-and-a-half Hiroshima-size nuclear weapons every day for 12 years. The people of the Marshall Islands who endured these tests and their offspring have suffered grave injuries, premature deaths, and displacement from their island homes, which can only be construed as a most serious breach of trusteeship of these islands. The US continues to test nuclear-capable intercontinental ballistic missiles from Vandenberg Air Force Base in California, which is on the land of the Chumash Indians, and targets most of these missiles at the Ronald Reagan Missile Defense Test Range in the Marshall Islands.
9. The US has conspicuously wasted public funds.
The public funds used to develop, manufacture, test, deploy and maintain the US nuclear arsenal and its delivery systems have been estimated to exceed $7.5 trillion. Even now, more than 20 years after the end of the Cold War, the government continues to spend $60 to $70 billion annually and plans to maintain this level for the next decade. These funds have been taken from the resources that could have been used to feed the hungry, house the homeless, provide education for our children and help restore our infrastructure and our economic well-being.
10. The US has conspired to commit international crimes and to cover them up by silence.
US nuclear weapons policy threatens each of the three major Nuremberg Tribunal crimes: crimes against peace, war crimes and crimes against humanity. The US government and major US media have conspired to prevent a full and open public discussion of nuclear weapons crimes. Why are the US government and US mainstream media silent about these crimes? Why is the mainstream media so accepting of US nuclear weapons policy, which threatens the destruction of civilization? This conspiracy of silence has helped to assure the complacency of the American people.
Current US nuclear weapons policy is illegal, immoral and runs a high risk of resulting in nuclear catastrophe. We cannot wait until there is a nuclear war before we act to rid the world of these weapons of mass annihilation. The US should be the leader in this effort, rather than an obstacle to its realization. It is up to the court of public opinion to assure that the US asserts this leadership. The time to act is now.
David Krieger is President of the Nuclear Age Peace Foundation.