Should using nuclear weapons be a war crime?

The other day I mentioned that I wanted to talk in more depth about the ethical questions around the use of nuclear weapons.  Is there ever an ethical/moral case for their use or are they intrinsically evil?  Would the use of nuclear weapons be a war crime? I would suspect that instinctively most of us would react by saying that their use is unjustified and would tend to the view that it would be evil. Indeed, we may at the same time feel passionately that their use should be considered a war crime -even though there are technical differences between questions about what is moral and what is a crime.

Given that the presumption is that use of such weapons would lead to mutually assured destruction, we may however, also feel that the question is moot. If world leaders did start nuclear war, then who would be there to try them at the Hague afterwards. Perhaps though our views regarding the morality and criminality of using nuclear weapons reads back into our views on whether it should be a human rights crime to hold them in the first place? Something to ponder on.

I want to tease those questions out a little more.  Why is it that we consider the use of nuclear weapons to be a potential war crime?  I suspect that there are two reasons for this. First of all, we see the immediate and horrific impact of large scale explosions and then the potential fall out with radiation levels becoming harmful for miles around. We are all harrowed by the images after Hiroshima. The harm and destruction caused from a nuclear strike could be worse if missiles were primed to explode in the air

“Intense gamma rays knock electrons out of atoms in the surrounding air, and when the explosion takes place in the rarefied air at high altitude this effect may extend hundreds of miles.”

The Devastating Effects of Nuclear Weapons | The MIT Press Reader

Secondly, our assumption is that the use of nuclear weapons will inevitably involve not just the use of a single warhead but the full use of US/Russian and potentially other countries’ nuclear arsenal. In such a situation not only would many people die instantly but so much of the world would be unhabitable and there would be intense suffering in the aftermath of a nuclear apocalypse.

It’s important to start to think about those things because we want to consider what exactly it is that makes nuclear war specifically horrific and would make it criminal?  Is it about the fear of global wipe out? If so, then that raises the question -would a localised tactical or sole strategic missile strike whilst horrific and concerning fall below the threshold of a war crime? What for example is our view of Hiroshima and why?

If our concern is about the significant loss of life and long-term damage to environments then it might be argued again that whilst intensely horrific, similar levels of damage, death and suffering can be done by conventional weapons, it’s more that the harm is caused by a single weapon.

Further, we might ask questions including:

• If technological developments reduced the risk and impact of radiation fall out would such weapons of mass destruction become more acceptable?
• If a government sought to limit the level of destruction by targeting areas as remote from civilian populations as possible would that be okay?
• If missiles were launched in response to another country striking first and landed in areas where radiation fall out was already present then would that affect the morality and legality of the action.

I raise those points because most responses I’ve seen which have argued that using nuclear weapons would be in and of itself a war crime seem predicated on the argument that their use would always be reckless, indiscriminate and unjustifiable.  So what then if an argument can be made that would justify a specific context where they should be used?  What if governments go to great lengths to ensure that their use of nuclear weapons is not indiscriminate. Is that materially different to a situation where a country goes to war, not seeking to attack civilian populations yet knowing that unavoidably civilian lives will be put at risk by air-strikes and that the slow grind of a ground war will lead to suffering, hardship and death?

Perhaps at this point you are thinking “then is there ever such a thing as a just war?”  Well, many Christians for exactly that reason have conscientiously taken a pacifist position. Whilst it’s not the position I personally hold, I understand, respect and am sympathetic to it.  At some point I’m hoping to have a look at Just War Theory too.

At this stage it would be helpful for us to look at what makes something a war crime. It’s probably helpful to distinguish criminality from immorality and even from unlawfulness more generally. Because something is morally wrong doesn’t mean it is crime, nor is every unlawful act criminal.  When we talk about criminal actions we tend to think in terms of too things.

Mens Rea -that there is intent to carry out the crime.

Actus Reus  -that the crime is carried out.

Notice, that outside of strict liability cases justice is not just interested in whether a wrong action was carried out. My intentions are parament too. We distinguish between something that was intentional and something accidental. Now, I could be negligent and that would lead to legal action but whilst negligence is a wrong, it is not a crime. It is however possible to engage ina criminal level of recklessness such as through dangerous driving.   

We need there to be the intent but we also need the action to happen as well for a crime to take place. Notice that conspiracy and certain levels of preparation may be examples of criminality but simply to consider or desire to do something is not itself a crime. As Christians though we would follow Jesus’ teaching and say that those desires and longings may well be sinful.

It is important then to consider whether use of nuclear weapons would always fulfil the presence of both Mens Rea and Actus Reus

Then there’s the question of whether the act itself is classified as a war-crime. It’s possible I think to argue that the radiation resulting from a nuclear strike might be argued to be poison and that would be outlawed under the Geneva Convention but I don’t think it has been defined in that way.

Therefore, the primary thing that is likely to make a nuclear strike a war crime, is the killing and injuring of civilian populations. This I think is the crunch point. Because that’s what a war crime is, because it is accepted that war does result in death,  I don’t think we can simply consider nuclear attack to be a war crime in and of itself.  That is clearly the assumption of numerous democratic countries that are party to the Geneva Convention.

At the same time, I think it’s also important to note that whilst hypothetical we can conceive of a situation where a Government chooses to just deploy one weapon and targets it in such a way as to minimise risk to civilian populations, we also struggle to think of real life situations where that is practically likely. So my view is that whilst we cannot say that use of nuclear weapons is in and of itself definitely a war crime, I struggle to think of a scenario where their use would not become a war crime.

This brings us back to another point. If I’ve argued that just because something is immoral doesn’t mean it is a crime then the converse is true as well. Just because it isn’t a crime doesn’t mean it isn’t immoral, evil even.  The question of what we do in a world where there are nuclear weapons abounding is complex. My gut feeling is that until we find a way of guaranteeing the removal of all nuclear weapons and protection against their rogue use (such as the missile defence systems that Ronald Reagan and George W Bush envisaged), then we are stuck I think with MAD and the Nuclear deterrent. I guess that means my default position is to prefer eventual multilateral disarmament.

However, I can recognise that we are in an unavoidable position yet also recognise that it is not good, it is grievous.  I cannot take joy in the existence of nuclear weapons. I cannot pretend that their presence is a good thing.  I wish that we had never set off down this path. I wish them gone.  So I pray that we will in our time see the full and complete end of the nuclear threat.