Use Of Nuclear Weapons As A Crime Against Humanity
An Act Of Genocide

by Gerard Donnelly Smith

March 31, 2003


"Yet many were deeply disturbed by her [Hannah Arendt's] depiction of an Eichmann who was not an ideological anti-Semite nor even criminally motivated--he wanted to rise in rank not by murdering anyone but by 'conscientiously' doing his job. 'Intent to do wrong' was not, in Arendt's opinion, proved against him. He was not 'morally insane' for in his own 'muddled' way he distinguished between right and wrong, and the results of psychological tests showed that he was not a 'monster' but frighteningly normal."
-- From Evil: The Crime against Humanity, by Jerome Kohn, Director, Hannah Arendt Center, New School University

In an age of "frighteningly normal" and mundanely average political leaders who conscientiously do their jobs, we must understand that the distinction between right and wrong, between evil and good, too often becomes a matter of perspective, of political expediency or "national security." To paraphrase Bosmajian: Euphemistic terms by making tolerable the intolerable, and justifiable the unjustifiable, also make manifest an ugly truth about human nature--humans are gullible folk whom the unscrupulous manipulate happily. In the name of national security, our leaders justify "pre-emptive strikes" upon, and "regime change" in whichever country they deem "evil" or part of the "axis of evil." Now, humanity faces a new threat: The use of a weapon of mass destruction in response to the use of any other type of weapon of mass destruction: chemical, biological or nuclear. But this time, the enemy isn't the USSR. Wish it were that simple and predictable. This time, the enemy can be anyone who harbours terrorists, anyone who threatens the security of the United States or any of its allies. As we have witnessed in Iraq, even with the slimmest evidence, or no evidence at all, Bush will attack. Now that we have witnessed the flagrant violation of UN principles by the United States, citizens everywhere must demand that nuclear weapons use be banned. That any world leader who uses any type of nuclear device as a weapon be charged with a crime against humanity and be brought to justice before the World Court.

Must one ask if the use of nuclear weapons or any other weapon is a "crime against humanity?" Terrorism has been defined as a crime against humanity. Death by stoning has been called a crime against humanity. Rape, abortion, electro-convulsive shock, and the slave trade have been defined as crimes against humanity. Using weapons of mass destruction should certainly be added to this list. But has any nation or international body clearly defined any use of nuclear weapons as a crime against humanity?

In Colombo, Sri Lanka, the South Asian Association for Regional Cooperation [SAARC] on July 28, 1998 released the following statement:

We, the peoples of South Asia, are dismayed and alarmed at the Indian and Pakistan nuclear tests of May 1998. The decision of the two traditional rivals, India and Pakistan, to build and deploy nuclear weapons has put at risk the survival of not only the peoples of India and Pakistan, but also the peoples of all the countries of South Asia.

We believe that nuclearisation of the subcontinent is a betrayal of the sacred trust of the peoples reposed in their governments. There can be no justification either for the initial nuclear tests by India or the retaliatory tests by Pakistan. No amount of provocation or perceived threat legitimizes the development, testing, proliferation or use of nuclear weapons.

Nuclear weapons are immoral weapons of mass destruction. It is a crime against humanity even to consider the use of nuclear weapons as an option.

Does the United States of America or any other nuclear power have such a statement?

In contrast, the Pentagon and the Bush administration resolve to develop "mini-nukes" or "bunker busters" in order to fight terrorism: the catch-phrase to replace the "cold war." On 10 January 2003, the Stockpile Stewardship Conference Planning Meeting for the Pentagon discussed the feasibility of low-yield tactical nukes. In their Future Arsenal Plan they listed the following "major" topic:

What are the warhead characteristics and advanced concepts we will need in the post-NPR (Nuclear Posture Review) environment?

(a) Establish methodology for making choices

(b) Strategy for selecting first "small builds"

(c) Requirements for low-yield weapons, EPWs, enhanced radiation weapons, agent defeat weapons

(d) Effects modeling capabilities to effectively plan for these weapons

(e) What forms of testing will these new designs require?

(f) What obvious weaknesses exist in our ability to attack targets and assess target damage for present and future targets and weapon systems?

Nuclear weapons have never been fully certified as non-lethal to civilians, nuclear physicists have not developed a nuclear weapon that does not spew radioactive material, have not ensured that ground water will not become contaminated, that dust particles will not ride the winds to cause mutation in future children. Despite scientific evidence to the contrary, Pentagon officials claim bunker busters with a nuclear warhead pose no threat to civilians because the devices explode underground. However, Princeton University physicist Robert Nelson concludes,

[...] the use of any nuclear weapon capable of destroying a buried target that is otherwise immune to conventional attack will necessarily produce enormous numbers of civilian casualties. No earth-burrowing missile can penetrate deep enough into the earth to contain an explosion with a nuclear yield even as small as 1 percent of the 15 kiloton Hiroshima weapon. The explosion simply blows out a massive crater of radioactive dirt, which rains down on the local region with an especially intense and deadly fallout.

Despite the warnings of scientists that such weapons will cause "collateral damage," the Bush Administration and the Pentagon -- using federal tax dollars -- are morphing Bill Clinton's bunker buster program into a mini-nuke bunker buster.

The "National Strategy to Combat Weapons of Mass Destruction," a joint report from National Security Adviser Condoleezza Rice and Homeland Security Director Tom Ridge clearly spells out George W. Bush's plan to keep "all our options on the table":

The United States will continue to make clear that it reserves the right to respond with overwhelming force -- including through resort to all of our options -- to the use of WMD [weapons of mass destruction] against the United States, our forces abroad, and friends and allies[...]. In addition to our conventional and nuclear response and defense capabilities, our overall deterrent posture against WMD threats is reinforced by effective intelligence, surveillance, and interdiction, and domestic law enforcement capabilities[...]. (p 2. col. 1)

In defense of such position Bush declares: "We are at war to keep the peace." He further reiterates his administration's determination to keep the world safe: "We've got all our options on the table because we want to make it very clear to nations that you will not threaten the United States or use weapons of mass destruction against us or our allies or friends" (CNN, May 2002).

Hasn't George Walker Bush been going to church? He says the Pledge of Allegiance, and swears this is one nation under god. He's even against abortion. In calling abortion murder, he defends the rights of unborn children. Abortion is genocide claims Justice for All, a national organization with charters on most American college campuses. Christian and staunchly pro-life, Justice for All might wonder at George Walker's hypocrisy. Clearly nuclear weapons will harm unborn children. Radiation creates mutations. In Hiroshima and Nagasaki, to this day, children are born with mutations caused by nuclear radiation. To this day, downwind from nuclear test sites incidents of cancer, leukemia, and birth defects are exponentially higher than national averages. If George Walker wants to protect unborn children from abortion, then he should oppose the use of nuclear weapons for any purpose. If abortion can be considered genocide, by any stretch of the imagination, certainly the use of nuclear weapons is a crime against humanity.

The World Council of Churches agrees with the aforementioned conclusion. Konrad Raiser, WCC General Secretary, clearly stated:

We know that true security is never to be found in arms of any sort, and certainly not in these most terrible weapons ever devised by human beings. Nuclear weapons are sinful, and their production, possession and deployment, and the very threat of their use in an extreme case constitute crimes against God and humanity. (WCC Leaflet)

Sinful, says Secretary Raiser. Last time I went to Sunday School sinful meant evil, inspired by Satan; most definitely something Christians or members of any other faith should avoid if they want to get to heaven. Perhaps George Walker's god isn't the merciful one who loves all children, but that more ancient and fiery god who thrived on burnt babies. What was his name, Moloch?

But aren't a few starving, mutated or burnt babies the price Americans will have to pay for national security, so their children can sleep safe at night, free from worries about terrorists who have weapons of mass destruction? Shouldn't we spend as much money as necessary to build those mini-nuke bunker-busters? Is any price too high for that type of security?

Oscar Arias, former President of Costa Rica and Nobel Peace Laureate, believes that such defense money could be better spent:

The existence of nuclear weapons presents a clear and present danger to life on Earth. Nuclear arms cannot bolster the security of any nation because they represent a threat to the security of the human race. These incredibly destructive weapons are an affront to our common humanity, and the tens of billions of dollars that are dedicated to their development and maintenance should be used instead to alleviate human need and suffering. (WCC Leaflet)

Instead, the Bush Administration plans to spend billions of dollars developing tactical nukes to fight world terrorism, naming seven nations as prime targets for "regime change." Rather than limit nuclear proliferation, threats of "regime change" via "bunker busting" with "mini-nukes" threaten to cause another arms race. Not an arms race between super powers. To the contrary, third-world countries may seek to arm themselves to defend against the big stick being waved by this administration or any future administration. Such brinkmanship supposedly helped Ronald Reagan bring down the Berlin Wall. But is that George Walker's game plan? Or is he circling the wagons, get ready to drop one for the Gipper?

What price for security? What will the United Nations be willing to allow? In an Advisory Opinion, the International Court of Justice (ICJ) said 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 at stake. (ICJ Advisory Opinion, par. 105, subsection 2 E).

In this opinion the ICJ may have left George Walker a crucial loophole. This logic seems to protect nuclear weapons as lawful for self-defense purposes (UN Charter, Article 51) as long such use adheres to the principle of proportionality. In Nicaragua v. United States of America, the ICJ ruled "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law" (ICJ Reports 1986, p. 94, par. 176). Ergo, the ICJ concludes "The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances." (ICJ Advisory Opinion 1986, par. 41).

Perhaps in deference to Israel's "Sampson Option," the ICJ has let the matter hang in judicial limbo. But limbo -- the proverbial purgatory -- is only few steps from the inferno. But does self-defense legitimize vaporizing an entire city? How proportional? Could the Bush Administration have legitimized the use a tactical nuke in retaliation for the destruction of the World Trade Center? However, this loophole does not render the issue moot.

All members of The United Nations by becoming Contracting Parties to the 1948 Convention on Genocide accept the following statement: Genocide is a crime against humanity. If Genocide is a crime against humanity, then the pre-calculated, pre-meditative use of nuclear weapons -- even in self-defense -- must also be a crime against humanity.

Article 1

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article 2

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Let's consider the articles point by point:

(a) Killing members of the group;

How many individual members of the group must be killed? 3,000, 50,000, 100,000? Perhaps 500,000. A one-megaton bomb detonated over any major city would easily vaporize 100,000 people. Yet one must ask whether any weapon that causes "mass" destruction violates this principle. Certainly a nuclear weapon causes "mass" destruction and loss of life. But how much "mass" in terms of human flesh must be destroyed? Would a "massive" aerial bombardment cause enough "mass destruction" to violate this principle?

(b) Causing serious bodily or mental harm to members of the group;

Besides the serious bodily harm of being vaporized, the remaining members of the group would suffer radiation sickness, would suffer from serious burns, and those who survived would be traumatized by the event. The effects of conventional war certainly meet this criterion, so certainly nuclear weapon use does also.

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Even in self-defense, the use of a nuclear weapon is pre-meditated. The consequences of such a weapon are clearly documented. The leader who orders such an action would inflict upon the target population "conditions of life" that would cause immediate "physical destruction" and would lead to long-term consequences that would produce increased birth defects and increase the incidence of terminal illness. The effect of one nuclear warhead has been "calculated" so precisely that we know an airborne explosion is more deadly than a ground explosion, that any humans within 200 miles of the epicenter will die either immediately or shortly thereafter, that individuals down wind of the blast will suffer from radiation sickness which will significantly shorten their lives.

(d) Imposing measures intended to prevent births within the group;

Birth defects and sterilization caused by radiation can continue for generations after the nuclear event.

(e) Forcibly transferring children of the group to another group.

Of course, the last test of Genocide is a moot point: most of the children directly affected by the nuclear blast will be killed immediately, or will die from radiation sickness. They will have been transferred into their god's hands. Clearly the use of nuclear weapons, whether low-yield or high-yield, strategic or tactical, violates these principles of genocide. If this is so, then why do groups opposed to nuclear weapons not clearly and persistently make this argument. Why are not the terms genocide and nuclear weapons use synonymous?

Because the International Court of Justice has already found that nuclear weapon use violates the principles of international law in regards to armed conflict, any leader who uses then will:

1) fail to discriminate between military and civilian personnel (Principle of Discrimination);

2) cause harm disproportionate to their preceding provocation's and/or to legitimate objectives (Principles of Proportionality and Necessity);

3) cause unnecessary or superfluous suffering (Principle of Humanity);

4) affect neutral States (Principal of Neutrality);

5) cause widespread, long-lasting and severe damage to the environment (Principle of Environmental Security);

6) use asphyxiating, poisonous or other gases, and all analogous liquids, materials or substances (Principal of Toxicity). (WCP)

Each of these actions -- even in self-defense -- violates these principles of international law, and when violated, especially using weapons of mass destruction, are considered "war crimes." If we accept this logic, then nuclear weapons use equals genocide. Furthermore, if George W. Bush, or any other leader, uses nuclear weapons, they will be guilty of genocide. According to Article 4 of the Convention on Genocide:

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

The loophole that allows the use of nuclear weapons in self-defense or as a pre-emptive measure to protect national security is clearly illegal. Even understanding this, we must be very clear in our conclusion, so that George W. Bush, and any other leader, cannot claim he/she misread, or misunderstood the consequences.

1) Nuclear weapons are a weapon of mass destruction.

2) Weapons of mass destruction when used equal a crime against humanity.

3) Nuclear weapon use brings about all of the effects that define genocide.

Remember the law clearly states that those in power who do not oppose genocide are complicit, are accessories to the crime. So what is the punishment for genocide Mr. Prime Minister, Mr. President, Mr. Vice President and Mr. Secretary of State?

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Works Cited

International Court of Justice. Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion. 8 July 1996. http://www.cornnet.nl/~akmalten/unan5a.html

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) 26 November 1984. http://www.icj-cij.org/icjwww/icases/inus/inus_isummaries/inus_isummary_19841126.htm

Kohn, Jerome. Evil: The Crime against Humanity. Hannah Arendt Center, New School University. http://memory.loc.gov/ammem/arendthtml/essayc1.html

Nelson, Robert. "Low-Yield Earth-Penetrating Nuclear Weapons." FAS Public Interest Report Journal of The Federation of American Scientist. January/February 2001: 54. http://www.fas.org/faspir/2001/v54n1/weapons.htm

Rice, Condoleezza and Tom Ridge "National Strategy to Combat Weapons of Mass Destruction." December 2002. http://www.whitehouse.gov/news/releases/2002/12/WMDStrategy.pdf

South Asian Association for Regional Cooperation. The Declaration of the Tenth SAARC Summit of the Heads of State or Government of the Member Countries of the South Asian Association for Regional Cooperation, 31 July 1998. Colombo. http://www.saarc-sec.org/summits/10thdel.htm

Stockpile Stewardship Conference. "Stockpile Stewardship Conference Planning Meeting Minutes," 10 January 2003. Pentagon, Room 3C921 0930-1200 http://www.lasg.org/

WCC. Abolish Nuclear Weapons: Protect Creation.

World Court Project. Implications of the Advisory Opinion by the International Court of Justice on the Legal Status of Nuclear Weapons, Discussion Paper by the World Court Project International Steering Committee (Pokle Press, London, 1996), s. 17.


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Gerard Donnelly Smith, a poet and musician, teaches creative writing, literature and composition at Clark College in Vancouver WA. CERRO de la ESTRELLA (Logan Elm Press, 1992) was chosen for The Governor's Award for the Arts in Ohio, 1992. Excerpts from THE AMERICAN CORPSE (10 poems) were published in Apex of the M in 1995. He is the current director of the Columbia Writers Series, an Honorary Board Member of The Mountain Writers Series, and co-advisor of the Native American Student Council at Clark College. He has also organized readings for Poets Against the War.

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Published March 31, 2003
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