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Nuclear Weapons and Future Justice

Opinion: The head of the nonprofit Nuclear Age Peace Foundation, which calls for global nuclear disarmament, suggests criminalizing the mere possession of nuclear weapons.

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, must become more just and equitable. It also adds an explicit focus on the longer-term consequences of these relations.

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 Earth, 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 on Earth and 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:

Article 1. Future generations have a right to an uncontaminated and undamaged Earth and to its enjoyment as the ground of human history, of culture, and of the social bonds that make each generation and individual a member of one human family.

Article 2. Each generation, sharing in the estate and heritage of the Earth, has a duty as trustee for future generations to prevent irreversible and irreparable harm to life on Earth and to human freedom and dignity.

Article 3. It is, therefore, the paramount responsibility of each generation to maintain a constantly vigilant and prudential assessment of technological disturbances and modifications adversely affecting life on Earth, the balance of nature, and the evolution of mankind in order to protect the rights of future generations.

Article 4. All appropriate measures, including education, research, and legislation, shall be taken to guarantee these rights and to ensure that they not be sacrificed for present expediencies and conveniences.

Article 5. Governments, non-governmental organizations, and individuals are urged, therefore, imaginatively to implement these principles, as if in the very presence of those future generations whose rights we seek to establish and perpetuate

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 — those that would foreclose the future altogether or that would make life on the planet untenable — as crimes against future generations.

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 Toward Future Generations
Rights cannot exist in a vacuum. Along with rights, there must be concomitant responsibilities, including responsibilities to ensure the rights of future generations. On Nov. 12, 1997, the United Nations Educational, Scientific and Cultural Organization solemnly proclaimed the UNESCO Declaration on the Responsibilities of Present Generations Towards Future Generations. Two of its 12 articles closely relate to preserving a human future and a future for life on the planet:

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 ensuring 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 policies promoting the possession, threat or use of nuclear weapons.

Nuclear Weapons Possession as Criminal Behavior
The philosopher John Somerville coined a new term for the potential of nuclear weapons: omnicide, 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, 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 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.” The international court found that “the use of nuclear weapons would be a serious danger to future generations.” Even setting aside the blast effects of nuclear weapons, it 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 international 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.

While there could be virtually no threat or use of nuclear weapons that did not violate international humanitarian law, the international 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 international 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 international court was clear in reaffirming the obligation to nuclear disarmament in Article VI of the Nuclear Non-Proliferation Treaty. Unfortunately, the political leaders of the nuclear weapons states have not fulfilled their obligations under international law.

Today, nine states in the world are known to possess nuclear weapons: the U.S., Russia, the U.K., 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 to have 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 to separate its warheads from delivery vehicles so that there could be no inadvertent use of the weapons.

While this would be better nuclear policy than one that leaves open the possibility of first use, it would not eliminate the possibility of a second use of the weapons, which could escalate a nuclear war, kill great numbers of innocent civilians, affect the health of children of the victims and even place the future of humanity at risk. Thus, the conclusion seems inescapable that the possession of nuclear weapons by a state undermines future justice and constitutes a continuing crime against future generations.

The possession of nuclear weapons can be viewed as a crime of state, and this crime would apply to the states possessing 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 Nuremberg Trials following World War II, the principle was upheld that all individuals who commit crimes under international law are responsible for such acts, 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
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 normal behavior by powerful states. 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 be prevented only 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 and that ostracizes those who contribute to maintaining these weapons or who set up obstacles to their elimination.

There are some signs of hope:

•   More than half the world, virtually the entire Southern Hemisphere, is covered by nuclear weapons-free zones.

•   Former high-level U.S. policymakers, including former Secretaries of State Henry Kissinger and George Shultz, former Secretary of Defense William Perry and former Chairman of the Senate Armed Services Committee Sam Nunn, have spoken out in favor of a world free of nuclear weapons.

•   Norway’s government pension fund has set an example by divesting from companies providing components for nuclear weapons.

•   Legal measures to return to the International Court of Justice are being taken to challenge the lack of progress on nuclear disarmament obligations.

•   Leading scientists, including the late Nobel laureates Hans Bethe and Joseph Rotblat, are calling on scientists in all countries to cease working on nuclear weapons and other weapons of mass destruction.

•    U.K. Secretary of State for Defence Des Browne has proposed a conference of the five principal nuclear weapons states to address the technical challenges of verifying nuclear disarmament.

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 without them. Such organizations as the World Future Council, of which I am a councilor, need to take a leadership role in promoting the concept of future justice and crimes against future generations and in 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.

Among the tools needed to succeed in passing on the world intact to future generations is the identification of crimes against future generations to underpin the establishment of taboos against such crimes. Also needed is a system of accountability to ostracize and otherwise punish individuals, regardless of their office, who are engaged in the preparation or commission of such crimes. Future justice is not a possibility in a world without a future.

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