David Krieger, president of the Nuclear Age Peace Foundation, argues for criminalizing the possession of nuclear weapons. I think there are reasons why this proposition should be taken seriously. The most obvious - but not the only - one is the threat that nuclear warfare poses to the very survival of humankind. Yet it seems to me that there is also a powerful counter-argument to his proposal. Krieger writes:
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.
Leaving aside the issue of whether it's possible to commit a crime against people who don't yet exist, it seems to me clear that nuclear weapons are criminal by their very nature. This is because it is impossible to use them without killing civilians, and in very large numbers. (I'm excluding from consideration here 'small' battlefield nuclear weapons the effects of which would be limited to whatever battlefield, if there really are such.) My problem with Krieger's proposal, however, is that its implementation demands a world where there is, already, an effective structure of international law. For this proposal, there would need to be fully functioning and efficient policing and enforcement. There would need also to be an adequate degree of judicial independence in the system of law, so that the law could not be bypassed by means of a simple politically-motivated decision (use of the veto power at the UN, for example).
To say that these three conditions - efficient policing and enforcement, judicial independence - do not yet exist states the obvious. They nowhere near exist. I know that the reform of law can itself be a transformative process, moving a community nearer to the condition it hopes ultimately to attain or at least to approximate. Yet to criminalize the mere possession of nuclear weapons, as things are, would yield the following as a possible scenario. All states disarm in the nuclear sense, in accordance with the newly-agreed law. They do this, let us say, because they are relevantly 'good states' - good, that is, in being willing to observe the nuclear prohibition. A bad state now turns up and possesses itself of nuclear weapons, against the will of the international community - which will that community is unable to enforce because the bad state has the nukes to counteract any steps it might take to do so. We do not have to agree on which states in the world are good, and which states are - or might be likely to be - bad. The possibility alone of there being some bad states means that the danger I've projected would exist.
Here's an analogy. The state outlaws violence and coercion, but does not forswear these things itself; it rather reserves the right to exercise them as a way of enforcing that very prohibition. If the international community renounced nuclear weapons in conditions in which delinquent states could still acquire them, it would have itself a problem.
I am not made happy by the outcome of this quasi-Hobbesian reasoning. Maybe someone else can see a fault in it.