Nuclear Power and the Nuremberg Code

The German Parliament voted last week to phase-out nuclear power by 2022. Thus far lacking a legislative commitment, Prime Minister Naoto Kan says even resource-poor Japan should wean itself from nuclear power. Seventy percent of Japanese parliamentarians agree with him. What is it about World War II’s losers and atomic electricity?

Predictable responses to the latest and possibly worst civil disaster of the Nuclear Age? The final victory for (surging) anti-nuke movements? I don’t think so. There’s more happening here. No Japanese government has ever been accused of over attentiveness to public preferences. Instead, they may know something the war’s victors do not.

Legal proceedings against the notorious Nazi Doctors brought us the Nuremburg Code. (Japanese “scientists” were granted immunity by General MacArthur in exchange for their biowar research). It comprises ten directives for “human experimentation.”

The Nuremburg Code did not prevent a host of horrific postwar human experiments, including radiological studies, in Sweden, the UK, the US, and elsewhere. But it did lead, decades later, to widespread adoption of notions of “informed consent,” the development of institutional review boards, and other ethical and practical constraints on reckless research.

Nuclear power and the Bomb from which it derived are human experimentation, literally and figuratively. Countless rushed experiments were necessary to complete the Manhattan Project. An explosion tested the first Bomb in the New Mexican desert; within weeks, Hiroshima and Nagasaki became radioactive laboratories (and sarcophagi).

Over the next eighteen years hundreds of additional atomic explosions in the Nevada desert, the Soviet Arctic, the Kazakh steppe, the Algerian Sahara, French Polynesia, and on “American” atolls in the South Pacific enabled the development of the hydrogen bomb and sundry innovations. The Partial Test Ban Treaty (1963) drove nuclear testing underground for Britain, the US, and the USSR. Not party to the treaty, France continued atmospheric testing on Pacific islands, finally ending all tests in 1996.

No one knows the number of victims of nuclear weapons manufacture, testing and its detritus, as these experiments had no control groups. The American list includes Navajo uranium miners, soldiers, Utah sheep farmers, and residents around places like Rocky Flats, Colorado and Colonie, New York. Some New Mexicans likely got a fresh dose following the recent wildfire that torched the countryside surrounding Los Alamos National Laboratory, site of hundreds of tons of sloppily buried nuclear waste.

There is also uncertainty, and controversy, over the number of victims of civilian nuclear power. Estimates from anti-nuclear activists Helen Caldicott and Harvey Wasserman vary by several orders of magnitude from estimates by the Nuclear Regulatory Commission (NRC) and the Department of Energy. The reported death toll from Chernobyl starts at a few dozen and rises to nearly one million. We do know that the Chernobyl reactor released four hundred times more radioactive material than the bomb that destroyed Hiroshima. Similar disagreements still fog public understanding of the health effects of the Three Mile Island disaster.

Now there’s Fukushima, our ongoing nuclear nightmare. It’s a case study in corporate and government malfeasance, a bountiful feast for citizens concerned about transparency, prevarication, human and ecosystem health. One might think that the catastrophe would’ve led to a universal rush for the nuclear exits.

Instead, following an exceedingly brief period of safety protocol review, the forces pressing for a nuclear renaissance press on, especially in the land of the General Electric Mark I reactor: the United States.

How to think clearly about all this? That’s where the Nuremburg Code comes in. Were countries employing nuclear power held to its directives as are social and medical scientists, we’d likely see a quick retreat from the nuclear brink.

Applying the Code

The text of the Code, edited for brevity, comes from Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law, No. 10, Vol. 2 (Washington: U.S. Government Printing Office, 1949), pp. 181-182. It is available online at

1. The voluntary consent of the human subject is absolutely essential.

The human subject here is every single one of us, everywhere, but especially, in the American case, the hundred million who live near 104 operating nuclear reactors in the US.

Voluntary consent, which morphed into informed consent, prohibits “any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion.” Familiar with the story of the doomed Shoreham reactor? Follow the Vermont Yankee case? Does the term “tritium leak” ring a bell? Remember claims from the fifties that atomic electricity would be “too cheap to meter?” Do you consent to the NRC’s lowering safety standards when industry fails to meet them?

The human subject is to “have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.” While a handful of citizens became nuclear experts by necessity over the past several decades, most of the rest of us still have problems with household appliances and electronic gadgets. Our cell phones may lead to brain tumors; we yack away regardless. We’re also expected to comprehend the mostly invisible hazards of nuclear power? So goes contemporary life in what sociologist Ulrich Beck calls “risk society.”

The First Directive requires that the human subject consent to “all inconveniences and hazards reasonable to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.” “Reasonable” provides the industry, its boosters and regulators an out. No one responsible for reactor safety thought what happened in Fukushima reasonable. But “possibly” broadens the possibilities. While the probability of a catastrophic nuclear event on a given day is exceedingly low (somewhere around one in a billion), today could be the day. Low probability, high stakes. Has the industry or regulators explained the symptoms of acute radiation sickness to the public?

2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.

While we all agree that electricity is an essential social good, we know how to generate it using non-nuclear means. The industry sees this problem as an opportunity; that’s how we’ve come to learn of the climate change benefits of nuclear power. Entergy et al. hold out the frightening prospect of burning yet more coal to make up for the 20% of electric power provided in the US through nuclear reaction. Truly scary? Not if we act urgently on the non-esoteric knowledge that old-fashioned energy conservation (not to be confused with its contemporary manifestation, energy efficiency) is cheaper, safer and creates more jobs than energy generation.

3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.

Animals were used in nuclear weapons effects tests among other radiological experiments. Might partisans honestly differ over this directive? Do the terawatts generated by nuclear power stations over the decades justify the rare slip up? Not if you refer back to Directive Two. And not if you count the full costs of the full nuclear fuel cycle.

4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

Have the countless cancers, stillbirths, and deformities been necessary? Was the half-century of angst felt, and felt again, by hundreds of millions avoidable? Perhaps not if controlled fission was the sole means by which to light a bulb, pump water, or power a computer. But it isn’t.

5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur.

Can we forgive the hubris of engineers, physicists, lawyers, politicians, and energy policy experts who pushed atomic energy throughout the Nuclear Age? Their’s may simply be a (gigantic) case of misplaced faith in what looked like, in the early days, one of the most promising technologies of all time. What of those, like US Energy Secretary Steven Chu, who still push today? Directive Five poses a high hurdle in 2011.

Is the unintentional release of radioisotopes to the toxic stew of modern life equivalent to causing death or disability? It’s nearly impossible, except in extreme instances, to confidently trace complex disease etiology. There is “a priori reason” to believe that as long as nuclear reactors operate that there will be accidents. These are what sociologist Charles Perrow calls “normal accidents” (common to highly complex technological systems tightly coupled to other such technologies). Are nuclear accidents still accidents if you know, sooner or later, that they’re likely to happen?

6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.

This could be tricky if it weren’t for some of the other Directives. Who’s aware of the risks posed by nuclear power? Not most of us. Sure, many of us smoke, eat meat, fail to exercise, have unprotected sex, behavior far riskier than living downwind from a nuclear power plant. You take a far greater risk of death or disabling injury by driving than by atomic power generation. But we run these risks, other than driving in America, more or less voluntarily (eschewing automobility is not a viable option for one hundred or so million of us). Who decides the degree of risk taken by keeping reactors online? Not the affected public.

7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.

There’s not much the state and corporation can say in their defense. As we saw with Chernobyl, and as we’re seeing again with Fukushima, evacuation is the only real response to a serious nuclear accident. Run away, preferably in an orderly fashion. But that’s a problem for plants like Indian Point, fifty miles up the Hudson from Manhattan. Imagine ten or more million people in cars fleeing, where to exactly? The prevailing wind is from the west, but conditions vary.

I lived in rural Bavaria when Chernobyl blew up. We fled to Bonn in a VW rental van with our small children. We were moving anyway; I first learned of the disaster while on the train back from apartment hunting in Bad Godesberg. On the seat beside me was a popular tabloid with the bold headline in giant typeface: “Russian Women’s Hair Falling Out.” Skeptical of what looked like Boulevardzeitung hysteria, I picked the paper up and read the cover story.

By the time we settled in Bonn, the Federal German authorities proffered advice that conflicted with that of the Bavarian state government, which contradicted the pronouncements of municipal officials in Munich. Then there are those without personal vehicles. You may recall how well the car-less fared during Hurricane Katrina.

8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.

Advanced degrees and years of experience may count as scientific qualifications, but they don’t guarantee wise policy. Ask anyone whose boss has a doctorate. Just because we can squeeze electricity from enriched uranium doesn’t mean we ought to.

“All stages of the experiment.” This should include, one would think, the waste stage. The best scientifically qualified persons in the US can do is to leave spent fuel rods in onsite cooling ponds, or in dry cask storage (also onsite). Even ardent backers of nuclear power do not believe this a sustainable solution.

9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.

While some materials emit radiation forever, the nuclear generation of electricity need not be. My friend, political scientist Edward Woodhouse, describes atomic power as “reversible.” Not like that jacket of yours, but rather in the sense of no longer doing it. We can stop.

All it takes is a huge, diverse, creative social movement to bring sufficient pressure to bear on decision-makers. This is how, with few exceptions, individual plants were defeated or shut down in the United States. Or you could get lucky and have a governor like Andrew Cuomo who, surprisingly, opposes the relicensing of Indian Point. It’s unclear why he doesn’t oppose the other three nuclear plants in upstate New York.

10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

The dozens of scientists, engineers and technicians who came forward over the years with inside knowledge of dangerous operating conditions, shoddy maintenance or design flaws, were, likely without knowing it, following Directive Ten. None of these courageous people went public out of self-interest. To the contrary, the personal and professional hazards of whistleblowing are well known. The problem for the rest of us is that despite the devastating and documented claims of whistleblowers, the plants remain open.

Beyond Nuclear Power

The application of the Nuremburg Code did not uncover all the defects of atomic power. At least two serious problems remain. The first is nuclear weapons proliferation. The world collectively decided in the Non-Proliferation Treaty (NPT) in 1970 that fewer nuclear weapons in the hands of fewer countries is superior to the alternatives. The Treaty rests on three pillars: non-proliferation; disarmament; and the peaceful use of nuclear power.

The non-proliferation pillar is relatively successful. Only three states—India, Pakistan and North Korea—developed nuclear weapons since 1970. Israel likely had the Bomb by the late sixties, according to whistleblower Mordechai Vanunu, but refuses to admit it has the Bomb. Nor has Israel signed the NPT.

The disarmament pillar, aimed at existing nuclear weapons states? A dismal failure until the INF Treaty of 1987, the first disarmament agreement of the Nuclear Age. The START Treaties reduced the number of strategic nuclear weapons by over 80%. Advocates for “minimum deterrence” claim each power could deter the other (and third parties) with as few as two or three hundred strategic weapons. Much work, including eliminating tactical nuclear weapons, remains.

The peaceful use pillar is ridiculous if highly dangerous. In the sixties and seventies, Soviet and American policymakers proposed to use nuclear weapons for natural gas exploitation, river course redirection, canal and harbor construction, and other wacky projects. The US detonated twenty-eight large bombs in the fruitless effort to find some practical use for the things; the Soviets, over two hundred. The Peaceful Nuclear Explosions Treaty of 1976 limited but did not outlaw the practice. No state uses nuclear explosions for “peaceful” purposes today.

It’s difficult, if not impossible, to develop nuclear weapons without research reactors nearly identical to those that generate electricity. A state with nuclear power that wanted nuclear weapons is afforded a considerable head start. This may be the greatest danger posed by the peaceful use pillar of the NPT, and by the workings of the International Atomic Energy Agency, and the World Health Organization (yes, even WHO has a nuclear charge).

If you believe that Iran, an NPT signatory, is surreptitiously developing nuclear weapons, then you must wonder about the peaceful use pillar. It provides cover for covert programs. If nuclear power were banned, it would be far more difficult for Iran or any other non-nuclear weapons state to build a bomb.

Finally, there’s the problem of nuclear terrorism. It’s more than just the stuff of quickie thrillers, bad movies and academic conferences. President Obama repeatedly said that it’s his greatest national security concern. The sort he’s especially worried by is the acquisition or fabrication of a weapon by al-Qaeda. Enough fissile material has gone missing in the United States and the former Soviet Union to give anyone the jitters.

To target a nuclear plant with one or more hijacked commercial aircraft would be even craftier (the two planes that struck the World Trade Center on 9/11 flew directly over Indian Point). The NRC tells us not to worry, that reactor containment structures can survive direct collisions with large, high-speed aircraft. That’s what TEPCO said about earthquakes, tsunamis and Fukushima.

Or, and I’m not trying to give Tom Clancy ideas, trust me, terrorists might seize control or sabotage a nuclear plant. Even if they failed to blow it up, mass panic would ensue. In drills, commandoes typically commandeer plants without breaking a sweat.

This sort of worst-case thinking is neither macabre nor excessive. It’s a necessary evil of the Nuclear Age, especially in the last decade. We must think the unthinkable (though not how Herman Kahn meant). If we desire that Hiroshima and Nagasaki, Chernobyl and Fukushima remain the worst of it, then the world must abolish nuclear weapons and phase-out nuclear power as quickly as feasible. The United States should lead the way.

Steve Breyman’s most recent book is Why Movements Matter: the West German Peace Movement and US Arms Control Policy. Reach him at

Steve Breyman was a William C. Foster Visiting Scholar Fellow in the Clinton State Department, and serves as an advisor to Jill Stein, candidate for the Green Party presidential nomination. Reach him at