Evidence, Commentary, and Judgment

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5.1 Morality and Dictates of the Public Conscience

International law is, above all, an attempt to express a set of universal moral values. It was noted in the Introduction that the de Martens clause , which invokes the "laws of humanity" and "the dictates of the public conscience" as determinants of legal principle makes it appropriate to enquire for legal relevance into questions of morality and public conscience as they touch upon war and peace.

The Geneva Gas Protocol 1925 refers to "... the general opinion of the civilized world"; the Vienna Convention on the Law of Treaties 1969 refers to " ... a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character"; the Bacteriological (Biological) and Toxic Weapons Treaty 1971 refers to " ... such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this ... risk". Therefore additional weight is given to the need for enquiry for legal relevance, into questions of peremptory norms and the conscience of mankind.

It is quite clear that governments and states, as expressed repeatedly and extensively in treaty law as well as customary law, are unable to form lawful policies or act in a moral or normative vacuum, according only to their perceived military or political expediency, with impunity. It is a legal requirement that military policies and activities are consistent with "the general opinion of the civilized world", "the conscience of mankind", and the "laws of humanity" at an absolute minimum.

It was of course completely beyond the scope of a four-day Tribunal to consider the content and meaning of all relevant statements by religious and moral bodies which can be considered as evidence of the dictates of the public conscience by virtue of widespread adherence or acceptance; the Tribunal had to be content with a section of evidence which is minute in terms of the totality of possible evidence. The Tribunal noted that most of the evidence was related to Christian moral interpretations.

One of the witnesses, Dr. Greet, commenced his evidence by quoting a British Council of Churches statement of 24th November 1980; "The doctrine of deterrence based upon the prospects of mutual assured destruction is increasingly offensive to the Christian conscience". He argued that Christian morality provides no justification for the possession and use of nuclear weapons. He presented to the Tribunal, the criteria represented in the Christian concept of a "just war".

For a war to be just, it must:

  1. have been undertaken by a lawful authority;
  2. have been undertaken for the vindication of an undoubted right that has certainly been infringed;
  3. be a last resort, all peaceful means of settlement having failed;
  4. offer the possibility of good to be achieved outweighing the evils that war would involve;
  5. be waged with the reasonable hope of victory for justice;
  6. be waged with the right intention;
  7. use methods which are legitimate, that is, in accordance with man's nature as a rational being, with Christian moral principles and international agreement;
  8. many statements of the doctrine also include the provision that military action must not be aimed at non-combatants.

He also regretted that many wars waged by Christians have not been consistent with this doctrine. He proposed that what the Christian believes about the rights and wrongs of particular issues must be determined by sound moral ideology; that is to say by the bringing together of the facts of the situation and the morality that springs from the Christian's faith.

He argued that:

"...Christian morality provides no justification for the use of nuclear weapons. But what about the possession of them? It is a basic principle of Christian morality that if it is wrong to do a particular thing, it is also wrong to intend to do it. Those who defend the concept of deterrence may say: "It is not really our intention to use nuclear weapons; on the contrary we only possess them to ensure they are never used. It is only our intention to use them if they are first used against us". If the use of nuclear weapons is wrong, it must be wrong in all circumstances and wrong to intend to use them even if attacked."

Monsignor Kent referred the Tribunal to the 2nd Vatican Council of the Roman Catholic Church which declared (Gaudium et Spec para 79):

"While the danger of war remains and while there is no competent authority equipped with adequate power, governments cannot be denied the right to defence if they have exhausted every peaceful means of settlement...".

The fundamental question is if such a right to defence includes the right to the possession or use of nuclear weapons.

In considering the Christian doctrine of a just war, Monsignor Kent represented to the Tribunal that nuclear weapons must violate several of the conditions, viz;

  1. there must be a serious hope of victory,
  2. there must also be genuine conviction that the harm done by the war will be in proportion to the good which the war is aimed to achieve and which there is a probability of achieving,
  3. in war itself the means used should be discriminate.

He concluded that "nuclear deterrence is an unstable and morally flawed position". On a related moral issue he brought to the attention of the Tribunal, the late President Eisenhower's description of the arms race as "theft from the world's poor".

Canon Oestreicher explained to the Tribunal that there are two theologically accepted views within the Christian moral tradition:

  1. pacifism
  2. just war

He held that under both views, nuclear weapons are morally unacceptable: "Clearly a pacifist view rules out the use of weapons of all kinds", and, "It is now almost universally accepted as part of Christian orthodoxy that by no sensible stretch of the imagination could the use of nuclear weapons fall within the definitions of a just war". In dealing with the contention that some nuclear weapons could be used in a way no more harmful than some conventional weapons, he stated that although such a contention may be true it should not blind people to the fact that not even all so-called conventional weapons are morally acceptable according to the doctrines of a just war, or, by implication, acceptable under many of the restrictions imposed by the laws of war and peace. At a personal level of responsibility he felt that the most important thing about nuclear defence is that human beings in nuclear research, industry and the armed services must be conditioned to giving their assent to preparation for and if need be waging nuclear war, that is, conditioning human beings to commit genocide should they be ordered to do so. He drew an analogy with deterring or punishing a criminal by threatening the criminal's wife and children, and planning their deaths. He claimed that although social value systems may be worth defending, nuclear weapons are not effective in preserving any systems which they destroy. Given free choice, there is the point that populations prefer to exercise their own right to life, as evidenced by Canon Oestreicher when he stated to the Tribunal that suicide rates in tyrannies of right and left are not higher than in democracies.

He concluded by stating; "The threat to use nuclear weapons and therefore their existence as well as their use, is fundamentally immoral because it undermines the respect for creation on which the future of life together on this planet depends".

The Rev. Ohkawa described many dehumanizing effects of the possession and use of nuclear weapons. The atomic bombing in Japan destroyed all normal human relations such as love, family, friendships, ties to the local community, humanity, and human dignity. In terms of the loss of humanity in the nuclear era, he put the question as:

"Is it possible for human beings to coexist with nuclear weapons? Can justice, and the policy of nuclear arms exist side by side? I believe that trampling on human character has been accelerated with the politics that gives top priority to nuclear weapons, that it is a mental assault on human life in advance of a nuclear explosion."

He claimed a loss of human character in the nuclear era; desperation, nothingness, violence, decline in morality, spread of juvenile delinquency, mistrust of fellow humans, national discrimination, repression, famine. He stated that these are the consequences of the unlimited seeking of one's own interests, an unjustifiable policy of strength, and nuclear blackmail. He asked that these be condemned as a serious crime.

In his conclusion, Rev. Ohkawa asked for the establishment of peace with justice, which can only be established when it [justice] is based on the character and dignity of human beings.

The Venerable Sato described his personal regret at his military involvement in the early years of his adulthood. Subsequently he was ordained into the Buddhist Order. He explained to the Tribunal that:

"Buddhism begins with suffering, we start from the position of suffering, and our task is to remove suffering. The greatest suffering to which we must address ourselves is the killing, the annihilation of mankind which is threatened by nuclear weapons. For the first of the five basic precepts of the Buddha is "not to kill". In the wider context of achieving peace, the method is compassion."

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