Nuclear Weapons and Future Justice

Future justice requires that the inhabitants of the future be treated justly and equitably. This implies that our current social, economic and political relations, both nationally and internationally, become more just and equitable. It also adds an explicit focus on the longer term consequences of these relations. The decisions taken in the present must be made with a view to their effect upon future generations.

Many indigenous peoples lived with an ethic of considering present impacts on the “seventh generation.” Modern societies have been far less respectful of those who will follow us on the planet, as the expanding population of the planet combined with our greed for natural resources and the power of our technologies has exponentially increased the human impact upon the Earth and upon future generations.

We need an ethic that expands our concept of justice to generations yet unborn. We need to recognize and appreciate the extent to which our decisions and acts in the present have serious, potentially irreversible, consequences for the future. In the 1990s, The Cousteau Society, led by respected ocean explorer Jacques Cousteau, developed and promoted a Bill of Rights for Future Generations. Its five articles are:

To enforce such a set of rights for future generations, we need to create a criminal conceptualization that designates the worst offenses against these rights as crimes against future generations, the worst crimes being those that would foreclose the future altogether or that would make life on the planet untenable. Two areas of human activity that would clearly fit into this category of foreclosing the future are nuclear war and climate change. Both have the potential to destroy human life on our planet, along with much other life.

Responsibilities towards Future Generations

Rights cannot exist in a vacuum. Along with rights, there must be concomitant responsibilities, including responsibilities to assure the rights of future generations. On November 12, 1997, the United Nations Educational, Scientific and Cultural Organization (UNESCO) solemnly proclaimed the UNESCO Declaration on the Responsibilities of Current Generations towards Future Generations. The Declaration was composed of 12 Articles covering a full range of responsibilities towards future generations. The two Articles most closely related to preserving a human future and a future for life on the planet are Articles 3 and 4.

Article 3 – Maintenance and perpetuation of humankind – The present generations should strive to ensure the maintenance and perpetuation of humankind with due respect for the dignity of the human person. Consequently, the nature and form of human life must not be undermined in any way whatsoever.

Article 4 – Preservation of life on Earth – The present generations have the responsibility to bequeath to future generations an Earth which will not one day be irreversibly damaged by human activity. Each generation inheriting the Earth temporarily should take care to use natural resources reasonably and ensure that life is not prejudiced by harmful modifications of the ecosystems and that scientific and technological progress in all fields does not harm life on Earth.

The Declaration calls for “intergenerational solidarity.” Such solidarity with future generations requires that current generations take responsibility for assuring that the policies of those in power today will not lead to foreclosing the future for generations yet to be born. Thus, the importance of conceptualizing crimes against future generations cannot be evaded by the people of the present. A strong example of such crimes can be found in the example of policies promoting the possession, threat or use of nuclear weapons. Such policies constitute assaults upon future generations, as well as upon present life on the planet.

Nuclear Weapons and International Law

In the record of human history, survival chances have been enhanced by affiliation with the tribe and later with the nation-state. Such affiliations have provided a defense against the aggression of other groups. Violent conflicts between tribes and later nations have given rise to the pattern of warfare that has characterized human behavior from its earliest history. Technological innovations in warfare, such as the stirrup, crossbow, machinegun, airplane and submarine have given advantage to one side or another.

What characterizes the Nuclear Age is the innovation of a form of weaponry that makes possible the destruction of the species. Nuclear weapons, which are weapons of indiscriminate mass destruction, have the capacity to foreclose the future of human life on the planet. The philosopher John Somerville coined a new term for the potential of nuclear weapons – omnicide, meaning the death of all. He reasoned that humans had moved from suicide, to genocide, to the potential of omnicide. The threat or use of nuclear weapons constitutes the ultimate crime against the future, the crime of omnicide, including the destruction of the human species.

In 1996, the International Court of Justice issued an Advisory Opinion on the legality of the threat or use of nuclear weapons. The Court found, “The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet.” It further found that “the use of nuclear weapons would be a serious danger to future generations.” Even setting aside the blast effects of nuclear weapons, the Court found, “Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.”

The Court unanimously concluded that any threat or use of nuclear weapons that violated international humanitarian law would be illegal. This meant that there could be no legal threat or use of nuclear weapons that was indiscriminate as between civilians and combatants, that caused unnecessary suffering, or that was disproportionate to a prior attack. Despite the fact that there could be virtually no threat or use of nuclear weapons that did not violate international humanitarian law, the Court also found on a split vote that “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-defense, in which the very survival of a State would be at stake.”

In light of the above conclusions, the Court found unanimously, “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.” Thus, the Court was clear in reaffirming the obligation to nuclear disarmament in Article VI of the Nuclear Non-Proliferation Treaty. Although this aspect of the Court’s opinion does not specifically refer to the rights of future generations, adherence by the nuclear weapons states to “nuclear disarmament in all its aspects” would eliminate the possibility of nuclear weapons foreclosing the future by eliminating the weapons. Unfortunately, the political leaders of the nuclear weapons states have not fulfilled their obligations under international law.

Nuclear Weapons Possession as Criminal Behavior

Today there are nine states in the world that possess nuclear weapons: the US, Russia, UK, France, China, Israel, India, Pakistan and North Korea. If we know that nuclear war could foreclose the future and would be a crime against future generations, does that make the possession of nuclear weapons by these states a crime against the future? Arguably, possession alone, without use or threat of use, is not a crime. But to take the inquiry one step deeper, is it possible that there can be possession without at least the implicit threat of use? In order to eliminate the possibility of threat or use of nuclear weapons, a state at a minimum would need to have a policy of “No First Use,” and would have to separate its warheads from delivery vehicles so that there could not be an inadvertent use of the weapons. While this would be better nuclear policy than one that left open the possibility of first use, it would not eliminate the possibility of a second use of the weapons, which would escalate a nuclear war, kill great numbers of innocent civilians, impact the health of children of the victims and even place the future of humanity at risk. Thus, the conclusion seems inescapable that the possessionof nuclear weapons by a state undermines future justice and constitutes a continuing crime against future generations.

Individual Accountability for Criminal Acts

The possession of nuclear weapons can be viewed as a crime of state, and this crime would apply to the nine states in possession of nuclear weapons. But beyond state criminal activity, there should also be culpability for the crime against the future by the leading state and military officials that support and promote nuclear weapons possession, as well as policies that make nuclear war more likely and total nuclear disarmament less likely. In addition, corporations, corporate executives and scientists who contribute to the maintenance and improvement of nuclear weapons should also be considered culpable for committing a crime against future generations.

It is fundamental to criminal law that individuals have culpability for crimes, and that individual accountability not be covered over by state or corporate culpability. At the Nuremburg Tribunals following World War II, the principle was upheld that all individuals who commit crimes under international law are responsible for such acts, and this is true even if they are high government officials and domestic law does not hold such acts to be crimes. Along with responsibility goes individual accountability for crimes against future generations.

The Need for a Taboo against Nuclear Arms

In the present global environment, the possession of nuclear weapons is not viewed as a crime against future generations or even broadly as a crime against the present, but rather as a normative behavior of powerful states. There is a strong need to change this general orientation toward nuclear weapons through education about their dangers and their capacity to foreclose the future. One of the best reasons to eliminate nuclear weapons is that they have the potential to eliminate the human species, now or in the future. So long as nuclear weapons exist and are held in the arsenals of some countries, the danger of the use of these weapons under some conditions, by accident or design, cannot be entirely excluded. In addition, the existence of these weapons in the arsenals of some states creates pressures for other states to acquire such weaponry.

It is essential to establish a norm that the possession of nuclear weapons is a crime against future generations, a crime that can only be prevented by the total elimination of these weapons. A taboo must be established that puts nuclear weapons in the same category of unacceptable behaviors as cannibalism, incest, slavery and torture, a taboo that ostracizes those who contribute to maintaining these weapons and who set up obstacles to their elimination.

Signs of Hope

Providing Hope with Teeth

While these signs of hope hold promise, far more needs to be done to establish a taboo against the possession, threat and use of nuclear weapons that will result in a world free of nuclear weapons. Organizations such as the World Future Council need to take a leadership role in promoting the concept of future justice and crimes against future generations, identifying those particular crimes, such as nuclear war and the antecedent possession, threat or use of nuclear weapons, which are capable of foreclosing the future.

Those of us alive on the planet now are the trustees for future generations. We have the responsibility to assist in passing the world on intact to the next generation. We must act in intergenerational solidarity with those who are not yet present. In the words of the Cousteau Society’s Bill of Right for Future Generations, we must act “as if in the very presence of those future generations whose rights we seek to establish and perpetuate.”