10th and 11th October and 16th and 17th November 2000
LORD ADVOCATE’S REFERENCE
HIGH COURT OF JUSTICIARY
ANGIE ZELTER Respondent
the petition of
THE RIGHT HONOURABLE, THE LORD HARDIE
Her Majesty’s Advocate Petitioner
in terms of
Section 123 of the Criminal Procedure (Scotland) Act 1995
First Submission to the Court
As an accused in the original trial it is accepted that I have an interest in the outcome of the case and that I have a right to pursue that interest by taking an equal part in these proceedings. My role therefore, as first respondent, as a non-lawyer, and appearing in person, is to ensure that what I perceive to be my interests are put to the Court as best I can, for the Court to consider.
I have written out my submissions and would like to read them directly to you for several reasons.
Firstly, the Court has decided not to permit an official record to be taken of what is said in these proceedings 1 – despite my objections 2 . There may well be further legal proceedings at the European level and I therefore wish there to be no confusion about what I have put before this Court. I shall therefore read my submission word for word and hand it in officially to the Court with the supporting documentation and references.
Secondly, I am not confident that I can ensure that my interests are fully covered or that justice can be done to my case if I do it in a less formal manner. I am not a confident speaker and therefore prefer to read my submissions, which I have carefully thought about in less intimidating surroundings, as was allowed at the original trial at Greenock.
I would respectfully ask you to hear me through to the end.
I would like to bring to your attention a quote from a former Attorney General under Churchill, a famous Scotsman called Sir David Maxwell-Fyfe K.C., who was the UK prosecutor at Nuremberg. He said, “The law is a living thing. It is not rigid and unalterable. Its purpose is to serve mankind, and it must change and grow to meet the changing needs of society. The needs of Europe today have no parallel in history.” 3 1(7)
I suggest that this is as true today as it was 54 years ago.
These proceedings, however cloaked in technical legal language, will relate to whether there is a right for ordinary citizens to try to prevent innocent people from being murdered.
More precisely, they will determine whether the Scottish legal system allows ordinary people here in Scotland to try to prevent the “most serious crimes of concern to the international community as a whole” 4 – that is – crimes against humanity and war crimes.
What we will witness in this Court is whether the Scottish Judiciary have taken to heart, and mind, the lessons from the horrific experiences of ‘total war’ in the Second World War and of the necessity of ensuring that State practices are kept within the spirit and rule of international humanitarian law.
We will learn whether Scottish law can accommodate what is known as the Nuremberg Obligation, i.e. the obligation placed upon individuals by the 1st Nuremberg Principle. 5 1(12)
Let me proceed to
2. Answer 1 Or the context for this Lord Advocate’s Reference or to what is known as the MATERIAL FACTS
What follows is my account of the material facts as presented at Greenock. I will then indicate where this differs from the Lord Advocate’s Petition and why my version has important implications for the way the questions are answered.
Three ordinary women from three different countries – myself, Angie Zelter from England, Ulla Roder from Denmark, and Ellen Moxley from Scotland – calling ourselves ‘global citizens’ – acted to try to prevent one of the most horrendous crimes mankind has had to face. This crime is ongoing and we are still facing it today. It is the threat to kill millions of innocent people and possibly to extinguish life on this planet, by the continuing deployment of nuclear weapons, targeted at population centres at only a few minutes notice to fire. We tried to protect ourselves, and others, from the immediate and continuing threat of a nuclear holocaust, by doing what we could to prevent nuclear crime and we did this by disarming an essential link in the UK Trident nuclear weapon system. We completed our act – of what we called ‘people’s disarmament’ – by breaking a vital link in the UK’s preparations for nuclear mass murder. We disarmed ‘Maytime’, the floating laboratory on Loch Goil that is involved in maintaining the ability of Trident submarines to remain undetected whilst deploying under-water.
We were part of a group, called Trident Ploughshares, which being smaller at that time then consisted of 143 people from 10 different countries who had taken a Pledge to Prevent Nuclear Crime 6 and who were also engaged in trying to prevent nuclear mass murder. We did this in the knowledge of our rights under international law to act as individuals to try to prevent the preparations for war crimes and crimes against humanity and in the exercise of our inherent rights of self-defence as individual members of humanity against the threat of planetary extinction.
After the three of us had disabled ‘Maytime’, we displayed our joint statement explaining fully why we were justified in taking action to prevent crime. In it we stated, and I refer here to Reference 6 at page 1 – which was a Greenock Defence Production, “We wish to make it quite clear that our actions are not politically motivated (although we realize they have a political dimension). Our actions are based primarily on the legal and ethical premise that the UK’s Trident nuclear weapon system is a system preparing for the mass murder of innocent civilians over untold generations and we believe that the Trident system is ethically unjustifiable as well as being unlawful in international law. As loving, feeling, human beings we feel responsible for trying to do everything in our power to prevent the Trident system from being able to operate with the proviso that our actions are safe, nonviolent, open and accountable.” 7 2(5)
This joint statement, which was a production in the Greenock Trial, also outlined why the 100 kiloton Trident nuclear warheads could never be used in a discriminating way against military targets but were so powerful they would inevitably cause mass destruction of protected people, places and environment and that this destruction could not be limited in time or place and would constitute a major breach of the Geneva Conventions amongst other international law. The statement also explained that in June 1999 all three of our countries as part of NATO were at war in the Balkans and that international tensions were very high, making the possibility of nuclear war or accident correspondingly higher than it had been.
After disarming ‘Maytime’ we awaited the arrival of the police in order to explain fully what we had done and why we had done it. We acted peacefully, nonviolently, safely and accountably at all times. We acted in the knowledge that the only effective remedy open to us to prevent a nuclear holocaust was to join with other ‘global citizens’ in an effort to enforce the law ourselves as the government, judiciary, police and other institutions of the State were not willing to do it themselves, despite high level delegations asking them to do so.
At no time did we deny the damage caused to the equipment on Maytime that is listed in the indictment. At all times we consistently maintained that our acts were justified because we were trying to prevent preparations for indiscriminate attack and were upholding international and Scots law. This is borne out by the documents that were presented to the Greenock Court by both sides and which included copies of the joint statement left in Maytime, the transcripts of recordings of the police interviews and bail hearings and our testimony from the witness box.
After spending four months on remand and a further month in prison whilst arguing our case at Greenock Sheriff Court, we were acquitted of all charges of malicious mischief and theft of equipment.
Our defence was that we were engaged in crime prevention through the disarmament of illegal and criminal weapons of mass destruction and that we were acting out of absolute necessity.
We were acquitted on the grounds that our view was a reasonable one and arguable in a court of law and that there was no criminal intent in our action because it was based on a sincere belief, backed up by objective evidence, that we were acting against a continuing criminal conspiracy to contravene international humanitarian law, or in the words of Sheriff Gimblett:-
“the three accused took the view that if it was illegal, and given the horrendous nature of nuclear weapons, that they had an obligation in terms of international law, never mind morally to do the little they could to stop … the deployment and use of nuclear weapons in a situation which could be construed as a threat. They were not objecting to the (possession) [Note. Correction] per se. It follows I think that if I consider that Ms Zelter, Ms Roder and Ms Moxley were justified in the first leg of their defence, namely the international law defence, and had given that as their principal reason for their actions that the Crown had a duty to rebut that defence. They have not done so and accordingly I uphold the three defence submissions”. 8 2(12)
I would like to emphasise here that Sheriff Gimblett accepted that we were not acting against “possession per se” but against the deployment of Trident. See her comments in her Report at page 2 where she says, “this trial was not concerned with the possession of nuclear weapons” and on page 38 where she reports on my evidence where I said what I “was talking about was the active deployment of loaded Trident submarines” and that “What was at issue in this trial was the active deployment and the moving them around in submarines that was seen as a threat.” 9 2(13)
Since the acquittal there has been a political furore and demands that our acquittal be appealed. As an Appeal was not possible the State stepped in and the Lord Advocate instituted these rare Reference proceedings. If we had been preventing an ordinary, every-day kind of murder it is very unlikely that we would now be facing such proceedings. Hidden under the guise of official and lcil and members of CANSAR, a Plymouth-based pressure group.
Saturday night saw a sharp frost but a bright start to Sunday morning helped the warm camp atmosphere. More workshops took place, including planning for next year’s camp. An article in Plymouth’s Sunday Independent complained about foreigners arguing that we may have to put up with European bureaucrats but why should Plymouth put up with European protesters! A multi-faith service was held at Drake Gate on Sunday afternoon and the evening centred crime. They occur in a wider context where citizens in all of the 8 nuclear weapons states are engaged in resistance to the nuclear crime in one way or another and many of whom are facing various judicial proceedings. They occur in the international context of 114 States continuing condemnation of the nuclear weapons states’ refusal to honour their commitments under the Non-Proliferation Treaty and to immediately disarm their nuclear weapons. 10 2(15)
Thus there is a political context to this LAR hearing of which the Court should be aware. I say this advisedly in the light of the specific questions that have been chosen for the Court to discuss and the deliberate refusal, by the Crown, to ask the Court to look at the most serious of the questions that was raised by the Greenock acquittal – the question of the legality of Trident itself and why Scotland is allowing 100 kiloton nuclear warheads to be based, serviced and deployed from bases in Scotland in clear contravention of the basic human rights of the earth’s peoples. If this question could be examined impartially by the Court then People’s Disarmament would probably be unnecessary. I have asked on numerous occasions for this question to be raised at this hearing but to no avail. I have been told that it is for the Lord Advocate alone to determine which questions are asked of the Court. 11 2(16)
I was heartened to see in the Sheriff’s Report that she also considers it “right and proper that all matters raised by this trial … should be considered’. She specifically included ‘the question of what is meant by the threat and use and deployment” of nuclear weapons. 12 2(17)
I think it is relevant, at this point, to remind the Court that the Lord Advocate is a political appointee and a member of the Executive of a major nuclear weapon state. The official policy of the UK is one of possession, deployment and threat to use the 100 kiloton nuclear warheads on Trident. If our argument is correct that Trident is criminal then everyone within the Executive and Military, having individual responsibility under international law, is actually aiding, abetting or otherwise assisting in the preparation for the commission of major crimes against humanity and war crimes.
I will now make a few short comments about the
3. MATERIAL FACTS AS PRESENTED IN THE LORD ADVOCATE’S PETITION
In my view these are partial and one-sided and do not reflect the facts as they emerged in the evidence given in the trial at Greenock.
Perhaps the most invidious slant or interpretation of our actions on June 8th 1999 is contained in the petition at 1(b) where it states that “The evidence established, inter alia, that the acts alleged against the pannels had been motivated by and carried out in furtherance of their opposition to nuclear weapons and in particular the Trident weapons system”. 13 3(3)
In my view this is a complete distortion of the testimony that we gave and on which I was cross-questioned at Greenock. I utterly refute the innuendo that we were engaged in some kind of opposition or protest. I established in the witness box that in fact I was engaged in crime prevention through the disarmament of part of a complex system of illegal and criminal mass destruction.
My intention and motivation was to seek to prevent the criminal threat or use of nuclear weapons in contravention of customary international law, and thus involved no criminal intent. There was evidence to this effect before the Court which the Sheriff was entitled to accept.
In answer to a direct question from the PF on 13/10/99 in cross-examination I stated very clearly “I am not running a political campaign. I am trying to prevent nuclear crimes”. I presented evidence to show this and it was accepted by the Sheriff. The Sheriff reports my evidence given in cross-examination at page 32, “When asked if their aim was to influence and change government policy she replied “No”; she was trying to prevent any country in the world committing mass murder” and again at page 33 she “said that her action on 8 June was directly trying to prevent a crime.” 14 3(6)
The Lord Advocate’s distorted interpretation of the evidence given at the trial is reflected in the wording of Question 2 which talks about the pursuit of objections to the UK’s nuclear weapons but I will come to that later.
My position was and is that the threat or use of the nuclear warheads on the UK Trident weapon system that is currently deployed, is criminal under international law and that the U.K.’s reliance on Trident in its military posture amounts to a criminal conspiracy (along with other allied states) to carry out future war crimes and crimes against humanity in contravention of international humanitarian law.
I presented from the witness box substantial evidence of my knowledge of the illegality and criminality of the current British nuclear weapon system and policies. The Sheriff gives an outline of this in her Report at pages 24 -28 but I think it is essential to summarise the arguments that I made there as they are crucial to the answering of the 4 questions. As you will appreciate there is a common theme underlying all four of the Lord Advocate’s questions – the legal status of Trident. This next section of my submission will therefore provide the overall context for answering all the questions and I will refer to it when I come to my answers to the Four Questions to avoid repetition.
4. SUMMARY OF THE LEGAL ARGUMENTS FOR THE CRIMINALITY OF BRITISH TRIDENT.
International Law and Nuclear Weapons 4(1)
The July 8th 1996 Advisory Opinion of the International Court of Justice (ICJ), at para.75 15 outlines the sources of international law as they relate to nuclear weapons.
Advisory Opinions are intended to provide UN bodies guidance regarding legal issues and are not directly binding on the UN or its member States. However, the ICJ has authoritatively interpreted laws which States, including the UK, acknowledge they must follow, including humanitarian law and the UN Charter. I further contend, as I did at Greenock, that the Advisory Opinion is controlling because it is the authoritative articulation of customary international law on the legality of the use or threatened use of nuclear weapons. It is thus of exceptional relevance to this Court providing guidance on whether and in what circumstances the 100 kt nuclear warheads on Trident are in breach of international law.
Moreover, a Times Law Report of 19 May 1999 shows that national courts must take cognisance of ICJ Advisory Opinions. The Report stated of another advisory opinion, ‘The government of Malaysia was obliged to communicate the advisory opinion to the Malaysian courts in order that Malaysia’s international obligations be given effect’. 16 4(4)
In my opinion the Advisory Opinion of July 8th 1996 makes it quite clear that nuclear weapons would generally breach all of the following:
– The Declaration of St. Petersburg, 1868
because unnecessary suffering would be caused; [para.77]
– The Martens Clause, 1899
because humanity would not remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience; [para.78 and 87]
– The Hague Conventions, 1907
because unnecessary suffering would be caused and there would be no guarantee of the inviolability of neutral nations; [para.77]
– The U.N. Charter, 1945
because such a use of force would not be proportionate; [para.35 and 42]
– The Universal Declaration of Human Rights, 1948
because long-lasting radioactive contamination would interfere with innocent people’s inherent right to life and health;
– The Geneva Conventions, 1949
(which has been brought directly into UK law through the 1957 Geneva Conventions Act) because protection of the wounded, sick, the infirm, expectant mothers, civilian hospitals and health workers would not be ensured; [para.81]
– The Protocols Additional to the Geneva Conventions, 1977
(which have also been directly brought into UK law through the 1995 Geneva Conventions (Amendments) Act) because there would be massive incidental losses of civilian lives and widespread, long-term and severe damage to the environment. [para.84 and also look closely at Part IV, Article 48 of Protocol 1]
Serious violations of these treaties and declarations are defined as criminal acts under the
Nuremberg Principles, 1946
in that Principle 6 defines crimes against peace, war crimes and crimes against humanity. Specifically, Nuremberg Principle VI (a) defines Crimes against Peace as “Planning, preparation, initiation or waging of … a war in violation of international treaties, agreements or assurances … Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned”. Nuremberg Principle VI (b) defines War Crimes as “violations of the laws or customs of war” and Nuremberg Principle VI (c) defines Crimes against Humanity as “murder, extermination … and other inhumane acts done against any civilian population … when … carried on in execution of, or in connection with any crime against peace or any war crime”. 17 4(6)
The Non-Proliferation Treaty (NPT), 1968
is being violated now, in that the United Kingdom is not fulfilling its obligation to negotiate in good faith a nuclear disarmament. Cardinal Principles 4(7)
Charles Moxley has analysed the various rules of international law applicable to a consideration of whether Trident is in breach of international law. 18 These can be summarised thus: a) Rule of Proportionality (p39-52): at page 39, “The Rule of Proportionality….. prohibits the use of a weapon if its probable effects on combatant or non-combatant persons or objects would likely be disproportionate to the value of the anticipated military objective”. (At 39-40)
b) Rule of Necessity (p52-67): at page 52, “The Rule of Necessity provides that, in conducting a military operation, a State, even as against its adversary’s forces and property, may use only such a level of fore as in 1k and 1n supra.
ailo4: a threat of force as in 1l and 1n supra.
ailo5: a threat of force as in 1m and 1n supra.
5. I ask the court to consider the following which I submit would be committed if (heaven forfend) a weapon were used having effects which (as a matter of fact) breached 1k:
ailo6: a grave offence under the Geneva protocol 1977.
ailo7: a breach of the Nuremburg Principles, namely a warcrime.
6. I ask the court to consider the following which I seration altogether”. c) Rule of Moderation: (p63-64): at page 63, “The law of war recognises a general principle of moderation, expressed in the Hague Regulations by the maxim that “the right of belligerents to adopt means of injuring the enemy is not unlimited” (Article 22). This principle is a basis of and generally overlaps with the principles of necessity and proportionality”. d) Rule of Discrimination (p64-66) including
the Requirement of Controllability: (p66-69): Rule of Discrimination: at page 64, “The Rule of Discrimination prohibits the use of a weapon that cannot discriminate in its effects between military and civilian targets. This is a rule designed to protect civilian persons and objects. The law recognises that the use of a particular weapon against a military target may cause unintended collateral or incidental damage to civilian persons and objects and permits such damage, subject to compliance with the other applicable rules of law, including the principle of proportionality. However, the weapon must have been intended for – and capable of being controlled and directed against – a military target, and the civilian damage must have been unintended and collateral or incidental”.
As to the requirement of controllability: at page 66, “On the question of the controllability of nuclear weapons, the issue becomes central as to whether the controllability element of the discrimination rule requires only that the attacking State be capable of delivering the weapons accurately to a particular military target, or whether it also requires that the State be able to control the weapon’s effects, including radiation, upon delivery”. e) Rule of Civilian Immunity (p69-76): at page 69, “Occupying much the same ground as the Rules of Discrimination and Proportionality is the Rule of Civilian Immunity. The law of armed conflict prohibits “the directing of attacks against civilians, making them immune from such attack”.
Moxley’s analysis of these fundamental principles of international law and the ICJ advisory opinion clearly show that Trident, as a high yield nuclear weapon system, is in breach of all of these rules. Moreover, Trident is also in breach of the two cardinal principles of international law that the ICJ, at para.78, details as being contained in the above “fabric of humanitarian law”. It explains that “The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants. States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use”.
The United Kingdom confirmed these fundamental, intransgressible rules as customary laws at the Nuremberg International Military Tribunal and the Tokyo Tribunals in which it was involved, and supported them strongly in the United Nations Security Council creation of the International Criminal Tribunal for the former Yugoslavia and in the International Criminal Tribunal for Rwanda.
In other words the internatiurt to rule as to whether this would be a crime against peace (as being the waging of war in contravention of treaty contrary to Nuremburg principle 6a(i) “.a war in violation of international treaties, agreements or assurances”, or a crime under international law not being a breach of the Nuremburg principles, or a delict under international law.
11. I ask the court to note that grave breaches of the Geneva protocol 1977 are statutory offences under the Geneva Convention (amendment) Act 1995, threat or use of nuclear weapons is likely to be unlawful.
The ICJ held, at para.79, that the “fundamental rules (of humanitarian law) are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (emphasis added).
The ICJ specified, at para.105 2E, 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”.
The ICJ also envisioned, at para.94, no circumstances in which the use of nuclear weapons would be compatible with international law saying “none of the states advocating the legality of the use of nuclear weapons under certain circumstances, including the ‘clean’ use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield weapons”.
The ICJ acknowledged, at para.36, the “unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come”.
The ICJ refers, at para.95, to “the principles and rules of law applicable in armed conflict at the heart of which is the overriding consideration of humanity” and states “In view of the unique characteristics of nuclear weapons, … the use of such weapons in fact seems scarcely reconcilable with respect for such requirements” (emphasis added).
In conclusion, the ICJ Advisory Opinion, as a whole, gives a strong presumption of illegality. Of the fourteen Judges sitting, ten determined that the use of nuclear weapons would generally be unlawful. Further, six Judges were of the view that all uses of nuclear weapons would be per se unlawful. Possible Lawful Use? 4(12)
The only possible loophole that may have been left by the ICJ was when the Court stated, at para.105 2E, “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”.
However, it is clear that this possible exception cannot apply to the British Trident 100 kt nuclear warheads. If a nuclear weapon existed that was of low yield and where its effects could be confined to a particular military target then it might be that its use would not be unlawful under this exception of self-defence. The point is well put by the dissenting opinion of Judge Shahabuddeen at page 34-35, where he says, “An ‘extreme circumstance of self-defense, in which the very survival of a State would be at stake’….is the main circumstance in which the proponents of legality advance a claim to a right to use nuclear weapons. This is so for the reason that, assuming that the use of nuclear weapons is lawful, the nature of the weapons, combined with the limitations imposed by the requirements of necessity and proportionality which condition the exercise of the right of self-defense, will serve to confine their lawful right to that ‘extreme circumstance’. It follow that to hold that humanitarian law does not apply to the use of nuclear weapons in the main circumstances in which a claim of a right of use is advanced is to uphold the substance of thesis that humanitarian law does not apply at all to the use of nuclear weapons. That view has long been discarded; as the court itself recalls, the NWS [Nuclear Weapons States] themselves do not advocate it. I am not persuaded that a disfavoured thesis can be brought back to an exception based on self-defense.” What is beyond doubt is that Trident could never be justified in an “extreme circumstance of the self-defence” because 100 kt warheads would always fail the test of proportionality, necessity, controllability, discrimination, and civilian immunity. Most important of all it breaches the cardinal, or intransgressible, rule of humanitarian law in its inability to discriminate between military and civilian targets. I will return to the question of “extreme circumstances of self-defence’ in more detail latrary to section 1A of the Criminal Law Act 1967 as inserted by the Criminal Justice (Terrorist and Conspiracy) Act 1998 Subsection 1A(14)b makes immune “any person acting on behalf of, or holding office under, the Crown”. Following R v Duguid (1906) 70 JP 294 CCR, an accused can be convicted of conspiracy to commit an offence even if some or all of the other conspirators might be immune. The circumstances of that case were that a man was convicted of conspiring with the mother of a child to commit an abducas to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.” 4(15)
Paragraph 2E of 105 was agreed only with the casting vote of President Bedjaoui which made the vote 8 to 7. Judge Bedjaoui, President of the ICJ, specifically wrote his Declaration to explain why he used his casting vote for the adoption of paragraph 105 2E. At para.11 of his Declaration he states very clearly, “I cannot sufficiently emphasize that the Court’s inability to go beyond this statement of the situation can in no way be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons”. He also stated, at para.9, that “at no time did the Court lose sight of the fact that nuclear weapons constitute a potential means of destruction of all mankind”. At para.20 he says, “By its very nature the nuclear weapon, a blind weapon, therefore has a destabilizing effect on humanitarian law, the law of discrimination which regulates discernment in the use of weapons”. 19 4(16)
It is essential to assess the Court’s replies in the light of the judges appended statements, many of which were very detailed and closely reasoned. A good summary can be found in Chapter 3 of Charles Moxley’s useful book ‘Nuclear Weapons and International Law in the Post Cold War World’. As he pointed out on page 158 ‘Three of the dissenting judges – Judges Shahabuddeen, Koroma and Weeramantry – did so on the basis that the Court’s decision did not go far enough: They concluded that all uses or threatened uses of nuclear weapons would be per se unlawful. This brings to ten the number of judges determining that the use of nuclear weapons would generally be unlawful, a substantial majority on this overriding point’. 20 Illegality of the United Kingdom’s Nuclear Weapons 4(17)
The ICJ was asked to consider a Rogers
As we established at Greenock through the expert witnesses, British Trident nuclear warheads are 100 to 120 kilotons each – that is around 8 to 10 times larger than the ones used at Hiroshima and Nagasaki 21 – and have assigned to them military targets in and around Moscow. 22 Such use of these particular nuclear weapons could not distinguish between civilian and military targets, nor are they intended to do so. Indeed it is a nonsense to suggest that a nuclear bomb 8 times larger than the Hiroshima bomb could possibly do so. The reason nuclear weapons are targeted in this way is to try to deter war by threatening mass destruction. The tragic flaw in this logic being that if nuclear deterrence fails and the United Kingdom’s bluff is called, the threat of mass destruction must be carried out. It follows that the purpose of Trident is to terrorise and to create “incalculable and unacceptable” risks, just as the NATO Strategic Concept Document specifies. 23 Whilst politicians and others fudge the issue, the very point of “nuclear deterrence” is to threaten mass destruction.
It was submitted at Greenock that the British Trident system is an immediate and ongoing danger to life on Earth, a threat to international peace and specifically unlawful as a breach of the intransgressible rules of humanitarian law as expressed by the ICJ. I continue to submit that we are all still in imminent danger of extinction. As our expert witness, Professor Jack Boag, so graphically explained at Greenock, the sword of Damocles remains perilously over our heads. Self-Defence 4(20)
The ICJ held, at para.42, that “a use of force that is proportionate under the law of self-defence must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law”.
The main stumbling block for the United Kingdom can be found by examining the oral presentation given by Sir Nicholas Lyell to the ICJ on November 15, 1995. This illustrates the mind-set of a state so used to the thinking behind nuclear deterrence that it has forgotten what international humanitarian law is about. After admitting on page 45 that “there is no doubt that the customary law of war does prohibit some uses of nuclear weapons, just as it prohibits some uses of all types of weapons”, he then undermines this by elaborating a situation in which states are faced with invasion by overwhelming enemy forces: “If all other means at their disposal are insufficient, then how can it be said that the use of a nuclear weapon must be disproportionate? Unless it is being suggested that there comes a point when the victim of aggression is no longer permitted to defend itself because of the degree of suffering which defensive measures will inflict”. 24 4(22)
Yet this is the point of international humanitarian law. It is intended to limit the terrible effects of war and to ensure that there is a world left after a conflict ends. This means self-restraint even in the midst of justified self-defence.
According to the President of the Court, Judge Bedjaoui, “self-defence – if exercised in extreme circumstances in which the very survival of a State is in question – cannot engender a situation in which a State would exonerate itself from compliance with ‘intransgressible’ norms of international humanitarian law. In certain circumstances, therefore, a relentless opposition can arise, a head on collision of fundamental principles, neither one of which can be reduced to the other. The fact remains that the use of nuclear weapons by a State in circumstances in which its survival is at stake risks in its turn endangering the survival of all mankind, precisely because of the inextricable link between terror and escalation in the use of such weapons. It would thus be quite foolhardy unhesitatingly to set the survival of a State above all other considerations, in particular above the survival of mankind itself”. 25 4(24)
As Professor Christopher Greenwood Q.C. who represented the United Kingdom at the hearings before the ICJ, has observed, “To allow the necessities of self-defence to override the principles of humanitarian law would put at risk all the progress in that law which has been made over the last hundred years or so”. 26 4(25)
The “Humanitarian Law” as it is known as – that States must never make civilians the object of attack and must consequently never “use weapons that are incapable of distinguishing between civilian and military targets” 27 is reflected in Article 48 of the Additional Protocol 1 of 1977 to the Geneva Conventions of 1949, and various Commentaries of the International Committee of the Red Cross. These sources have been recognised by the House of Lords in R v. Ministry of Defence, ex p Walker at page 812B. 28 4(26)
Article 48 requires that parties to any conflict “shall at all times distinguish between civilian populations and combatants and between civilian objectives and military objectives”. 29 4(27)
The International Committee of the Red Cross 1987 commentary states, “The basic rule of protection and distinction is confirmed in this article. It is the foundation on which the codification of the laws and customs of war rests: the civilian population and civilian objects must be respected and protected in armed conflict, and for this purpose they must be distinguished from combatants and military objectives. The entire system established in The Hague in 1899 and 1907 and in Geneva from 1864-1977 is founded on this rule of customary law.” 30 4(28)
The significance of the Humanitarian Rule for the deployment of British Trident Nuclear weapons is not that all nuclear weapons are prohibited as such, though they will generally be contrary to international law; nor, necessarily, that there can be no use of smaller, low yield, tactical nuclear weapons yet to be invented; or that there could be no policy of some kinds of nuclear deterrence; or no reservation for use in an extreme circumstance of self-defence in which the very survival of the State would be at stake. The point is that the Humanitarian Rule governs any such weapons or uses. Any low yield weapon, or deterrence/self-defence policy must comply with the Humanitarian Rule; any weapon or use which cannot comply is unlawful. For the Rule is a “cardinal”, “intransgressible” rule.
If you take into account the blast, heat and radioactive effects of the detonation of a 100 kiloton nuclear warhead, especially in view of the fact that radioactive effects cannot be contained in either space or time, the use of even a single British Trident warhead in any circumstance, whether a first or second use and whether targeted against civilian populations or military objectives, would inevitably violate the prohibitions on the infliction of unnecessary suffering and indiscriminate harm as well as the rule of proportionality including with respect to the environment. Further, since the UK deploys its nuclear forces in a state of readiness for use pursuant to a declared policy contemplating use of nuclear weapons in a variety of circumstances, including first use, the deployment of Trident warheads is a threat in violation of humanitarian and other international law.
There is extensive literature on the intransgressible rules of humanitarian law, nuclear weapons and the ICJ Advisory Opinion. I am presenting only a summary here. But I would like to bring to your attention a useful recent paper prepared in 1999 by the International Committee of the Red Cross which clearly equates “the use of indiscriminate weapons with a deliberate attack upon civilians”. 31 4(31)
The categorical nature of the principle protecting civilians was recently affirmed by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in a decision reconfirming Milan Martic’s indictment for ordering rocket attacks on Zagreb which killed and wounded civilians. Applying humanitarian law including Article 1 common to all Geneva Conventions, which sets forth minimum standards of customary international law, the Trial Chamber stated that “no circumstances would legitimize an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party”. 32 4(32)
Many citizens and organisations have asked for examples of what the Government would consider to be a lawful use of its Trident nuclear weapons. They have never been given a straight answer. This is not surprising since, simply put, each Trident warhead is a potential holocaust. Instead, the government states that “Maintaining a degree of uncertainty about our precise capabilities is a key element of a credible minimum deterrent. It is precisely to retain this degree of uncertainty and so sustain our minimum deterrent that secrecy must be maintained in this area.” 33 But hiding behind this veil of secrecy allows the fudging and crooked thinking to continue.
The fact remains that Trident nuclear weapons are being used to frighten and intimidate and to threaten mass destruction. This is unlawful. There might conceivably be some uses of a one-kiloton nuclear warhead targeted on military forces in the middle of an ocean, or at a tank in the middle of a desert, which might be considered lawful, but conventional weapons would suffice for such objectives without carrying the unconscionable risk of nuclear escalation. This is because according to the ICJ’s Advisory Opinion, the use and threat of nuclear weapons are illegal, save possibly in an extreme circumstance of self-defence in which the very survival of a State is at stake; in other words, where the State is facing annihilation. Unless such in extremis circumstances exist, the use and threat of nuclear weapons are illegal.
Besides which, this is not what Trident is configured to do. If one looks at the warheads currently deployed on British Trident submarines then you can see that the United Kingdom has not reduced all its warheads to one kiloton or below, nor has it separated itself from joint NATO and US plans and strategies and their integrated targeting structures. Moreover, most, if not all, targets envisaged by the Ministry of Defence are in the vicinity of towns and cities with civilian populations. Any targeting of these places with the warheads currently deployed on Trident would lead to large-scale loss of civilian life in violation of humanitarian law.
Moreover, present United Kingdom policy statements show that the United Kingdom does not limit its use of nuclear threats to “extreme circumstances of self-defence”. The government clearly recognises that the United Kingdom is not in danger of a threat to its “very survival”.
The Strategic Defence Review conducted by the government states, “The end of the Cold War has transformed our security environment. The world does not live in the Shadow of World War. There is no longer a direct threat to Western Europe or the United Kingdom as we used to know it, and we face no significant military threat to any of our Overseas Territories”. 34 4(37)
Given that the survival of the United Kingdom is not presently in question, the current deployment of Trident nuclear submarines is an unlawful threat even if the government vouches that there is only one nuclear warhead of below one kiloton deployed, let alone the 144 warheads of up to 120 kilotons each that could be deployed.
Moreover, in a recent letter of 28/9/00 that I received on behalf of Trident Ploughshares from Stephen Willmer, the Ministry of Defence stated that the UK “will not use nuclear weapons (against non-nuclear-weapon States party to the NPT) … except in the case of (an) … attack on … its armed forces, its Allies, or on a State towards which it has a security commitment”. 35 This is hardly consistent with the ICJ, at para.105 2E, which states that there is only one situation when the use of nuclear weapons might be conceivable, and that is “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”. Defence Of Vital Interests 4(39)
It is clear that the United Kingdom’s nuclear weapon deployment and policy are not purely concerned with self-defence or even with retaliation against a nuclear attack from another NWS, but are also “to defend our vital interests to the utmost” as expressed in the Rifkind Doctrine. 36 4(40)
The Strategic Defence Review 37 specifically sees military power as “a coercive instrument to support political objectives” 38 which the rest of the report explicitly identifies as economic and oil-related. 39 The government says in the Review that Trident must perform a “sub-strategic role” 40 stating that the “credibility of deterrence also depends on retaining an option for a limited strike that would not automatically lead to a full-scale nuclear exchange”. There has been a great deal of confusion and a certain amount of scepticism about what Trident’s sub-strategic role might look like in practice. The Secretary of State for Defence for the previous Conservative Government, Malcolm Rifkind, referred to a “warning shot” or “shot across the bows”. More recently, British officials have described a sub-strategic strike as “the limited and highly selective use of nuclear weapons in a manner that fell demonstrably short of a strategic strike, but with a sufficient level of violence to convince an aggressor who had already miscalculated our resolve and attacked us that he should halt his aggression and withdraw or face the prospect of a devastating strategic strike”. 41
For a sub-strategic role there has been speculation that some of the 100 kt MIRVed warheads would be replaced with single 1 kt or 5 or even 10 kt warheads 42 , or that commanders could choose to detonate only the unboosted primary, resulting in an explosion with a yield of just a few kilotonnes. There are three core problems with the concept of a warning shot to deter further aggression: i) it cannot be used against non-nuclear parties to the NPT without violating Britain’s security assurances, most recently enshrined in the UN Security Council Resolution 984 (1995) 43 ; ii) it is not clear where such a warning shot could be fired so that civilians are not endangered; and iii) it is not apparent how, in the uncertain context of a hotting-up conflict, Britain would ensure that the adversary interpreted such a nuclear shot from Trident as a warning rather than a nuclear attack. Since pre-emption requires fast decision-making, it would be likely that a sub-strategic nuclear use would cause nuclear retaliation and possibly all-out nuclear war. British planners tend to duck the questions rather than address the dilemma, leaving the impression that they hope the bridge will never have to be faced, never mind crossed.
As Lord Murray (a former Lord Advocate of Scotland) pointed out, even a one kiloton bomb “would flatten all buildings within 0.5 km with up to 50 per cent fatalities up to 1 km. A prevailing wind could carry fallout as far as 25 km downwind”. 44 As Professor Paul Rogers agreed, in his testimony at Greenock, “the lowest British nuclear bomb … (is) … a weapon of mass destruction”. 45 4(43)
The deployment of nuclear weapons is perceived as an imminent ever-present threat by most States in the world, which in times of crisis is specifically backed up by verbal threats. This view is corroborated by Judge Schwebel when he reports on testimony from Ambassador Ekeus in the Senate Hearings on the Global Proliferation of Weapons of Mass Destruction which shows that Iraq perceived there to be an active threat to use nuclear weapons against it in 1990. In Schwebel’s section headed Desert Storm, he starts off, “The most recent and effective threat of the use of nuclear weapons took place on the eve of Desert Storm” and he then continues for several pages describing how the threat was communicated. 46 4(44)
In the February 1998 Iraq Crisis there was also talk of the possible use of nuclear weapons against Iraq. Any such use would have been unlawful because neither the United Kingdom nor the United States were under threat of obliteration by Iraq. It is worth remembering that the only possible window of legality left undecided by the ICJ was “an extreme circumstance of self-defence, in which its very survival would be at stake” (para.97).
And yet in the Commons Debate of February 17, 1998, Foreign Secretary Robin Cook said of Saddam Hussein “As in 1991, he should be in no doubt that if he were to do so (use chemical weapons against joint British-US air strikes) “there would be a proportionate response”. 47 4(46)
Interviewed on BBC Radio 4 on February 18, 1998, Defence Secretary George Robertson was given an opportunity to deny the nuclear option and he did not do so. All these were signals suggesting that nuclear weapons could be considered. They were also intended to be understood as such.
If you refer to Moxley’s book in Chapter 20 you may well find it useful to see the other active crisis threats that have been made over the years by the nuclear power with whom we are so closely linked, namely the US 48 As he says at page 515. “In addition to the ongoing threat that is inherent in the policy of deterrence, the US explicitly threatened to use nuclear weapons on at least 5 occassions during the Cold War, including in Korea in 1950-3, Suez in 1956, Lebanon in 1958, Cuba in 1962, the Middle East in 1973 and after the Cold War, in Iraq during the Gulf War”. He goes on to say at page 517 that Desmond Ball, Head of the Strategic and Defense Studies Centre in Australia reported there had been some twenty occasions during which “responsible officials of the United States government formally considered the use of nuclear weapons”. 4(48)
The whole purpose of nuclear deterrence is to create uncertainty about intentions. This means that the British Government has to persuade its ‘enemies’ that it might be willing to break international law without actually saying it this clearly. For instance, in the 1991 NATO Strategic Concept Document, Article 38 asserted that nuclear weapons are essential and permanent because they “make a unique contribution in rendering the risks of any aggression incalculable and unacceptable“. 49 4(49)
If the effect of a nuclear weapon is incalculable and unacceptable then it also follows that it is unlawful. Nuclear weapons are useful only in so far as they can be used to make threats that are themselves in breach of international law. Nuclear deterrence may be official British policy but that does not make it lawful.
To stress the words used in the ICJ, at para.105 2E, given that nuclear weapons are generally illegal there is only one situation when the use of nuclear weapons might be conceivable, and that is “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.
That does not include protecting cheap oil supplies overseas or ensuring the survival of its troops in a foreign land. War Crimes 4(52)
Any individual who ordered the use of the United Kingdom’s nuclear weapons which are currently deployed on Trident submarines would have committed a war crime as determined by the International Criminal Court Statute. This Statute sets forth offences under which individuals would be prosecuted once that court is in operation. Its substantive provisions were explicitly negotiated on the basis that they would reflect the present state of law binding on all States. While the Statute is not yet in effect, as the required number of States (60) has not yet ratified the instrument (the UK are preparing to ratify it in this new Parliamentary session), the Statute nonetheless stands as a consensus-based statement of presently binding law defining war crimes. 50 4(53)
Article 8 (2) (b) parts (iv) and (v) of the International Criminal Court Statute state, “War crimes means … serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts; … (iv) Intentional launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated, (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives”. 51 4(54)
Article 25 of the Rome Statute contemplates criminal responsibility not only in the case of those who personally commit offences, but also in the case of those who order them. [Ref.4. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 25(3.b)]. Article 28 has far reaching provisions on the responsibility of commanders and other superiors who may be liable in some situations for not giving appropriate orders. 52 4(55)
In relation to this responsibility it is important to note that the British government have always refused to answer our question of how the crew of Trident can take personal responsibility for their actions when their targets are coded and they do not know where their nuclear warheads will explode? The Law of Armed Conflict states, “Military personnel are required to obey lawful commands. There is no defence of ‘superior orders’. If a soldier carries out an illegal order, both he and the person giving that order are responsible.” The Nuremberg principle is binding. If Trident crews do not know what the targets of their weapons are, how can they know if they are legal targets or not? Trident crews fire blind. This is a criminal procedure. 53 4(56)
The 100 kiloton warheads on Trident are each eight times more powerful than the bomb used against Hiroshima. The Hiroshima bomb had killed approximately 140 to 150 thousand people, including thousands of innocent children, by the end of 1945, and devastated an entire city, destroying 18 major hospitals, 14 high-schools, colleges, and a university, many historic and deeply revered Shinto shrines, 13 Christian churches, 4 major factories – a whole city. 54 Moreover, when I was in Hiroshima this March I met survivors of that bomb who told me of the continuing suffering and took me to the Museum. One of the books I was given there states, “The damage caused by the A-bomb failed to heal normally with the passage of time. Over the years and decades, the horrors of radiation grew more conspicuous. Research into radiation effects, strictly suppressed during the occupation (by the US) proceeded rapidly when Japan was once again independent. This research gradually brought radiation aftereffects and the plight of the survivors into the open”. 55 That destruction in Hiroshima was ruled a war crime in the Shimoda Case. 56 At pages 234-242 it says that the “act of dropping such a cruel bomb is contrary to the fundamental principles of the laws of war that unnecessary pain not be given”. 4(57)
According to the ICJ, at para.105 2D, which was adopted unanimously, a threat or use of nuclear weapons must “be compatible with the requirements of the international law applicable in armed conflict”. It was confirmed, at para.78, that “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets … States do not have unlimited freedom of choice of means in the weapons they use”.
The threat to target civilians with nuclear weapons, whether as an unprovoked attack or as a reprisal, is therefore unlawful. In the oral statement that the United Kingdom gave to the ICJ on November 15, 1995, Sir Nicholas Lyell admitted that “…. even a military target must not be attacked if to do so would cause collateral civilian casualties or damage to civilian property which is excessive in relation to the concrete and direct military advantage anticipated from the attack”. 57 4(59)
However, as the ICJ points out, at para.35, “By its very nature … nuclear weapons as they exist today, release(s) not only immense quantities of heat and energy, but also powerful and prolonged radiation … These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystems of the planet”. This general statement about nuclear weapons is equally true when applied to British nuclear weapons in particular.
Faslane in Scotland is the primary base used by the United Kingdom’s four nuclear-armed Trident submarines. There is at least one Trident submarine on 24-hour patrol at all times. Each Trident submarine has 48 warheads of 100 to 120 kilotons each. A 100-kiloton warhead is too powerful to distinguish between civilian and military targets and its long lasting effects cannot be contained within space or time and therefore violates international law.
“Today the scale of Britain’s nuclear capability and the way it is deployed suggest that it remains oriented principally against Russia. An attack using the warheads on one submarine against likely targets in the Moscow area would result in over 3 million deaths” and “there would also be massive nuclear fallout over urban areas. Thousands of people would die over a 4 to 12 week period from this fallout”. 58 4(62)
Other potential targets are Russian Northern Fleet submarine bases. In the United Kingdom there are towns and villages close to every key submarine facility as is the case with Faslane, which is near the civilian population in Glasgow. There are also civilian populations close to Russian bases near Murmansk. Trident warheads exploding above these bases would cause devastation over a wide area and in each case would result in thousands of civilian casualties in urban areas. The areas affected would also be dangerous to rescue and medical staff and civilians who would want to use the area in future.
When I asked Professor Paul Rogers to use the actual specifications of the UK Trident Force along with UK targeting policies and to model this against Britain itself in order to more easily understand the effects of the Trident system, he produced a paper stating, on page 2, that “The main targets would be the Trident base at Faslane and the nuclear armaments site at Coulport, both close to Glasgow. Supporting facilities at bases including Rosyth (near Edinburgh) and Devonport (near Plymouth) would also be attacked” as would Fairford, Fylingdales, Aldermaston, and civil airports with long runways at “Heathrow, Stanstead, Gatwick, Birmingham, Manchester, Glasgow, Prestwick, and Edinburgh”. “Major military command centres would include Northwood … High Wycombe … Dunfermline .. Defence Intelligence Staff in Central London” … energy resources “such as Grangemouth, Teeside, Stanlow/Ellesmere Port” etc etc. He concludes that many of the targets are necessarily close to population centres and that the casualty figures would be measured in “many millions”. 59 4(64)
I have also included in the bundle of references a map of Edinburgh with one of its many military targets in the centre. This has been overlaid with the damage which would be caused if one of Trident’s warheads was exploded at 1,100 kt above the target. 60 It makes grim reading and brings home to us all how integrated the military have become in many cities and towns around the UK.
The upshot of it all is that any Trident sized nuclear warhead, even if targeted accurately, at any of these ‘military objectives’ would cause millions of civilian deaths. I am sure that we would all agree that such use of such nuclear weapons against Britain would be a war crime even if our leaders were invading another State and that State thought they were fighting for their very existence, in self-defence. And if such use would be a war crime if done against Britain then to be consistent it would also be a war crime if perpetrated against any other country in the world. Preparations for War Crimes 4(66)
The preparation for war crimes is itself a war crime, as made most explicit in the International Criminal Court Statute Article 25 (3). “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: …(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission“. 61 4(67)
This is a culmination of various precedents such as the last paragraph of Article 6 of the Charter of the International Military Tribunal at Nuremberg on “instigators and accomplices participating in the formulation … of a common plan or conspiracy”. 62 4(68)
The Prime Minister and other officers of the state are engaged in the planning and preparation for use of nuclear weapons, in that they are actively deploying nuclear weapons, of such a size that they could never be used lawfully. These are activities that incur individual criminal responsibility in international law. Any use of current British nuclear weapons would be manifestly unlawful and thus policy makers, state employees, researchers and technicians are engaged in the planning and preparation of gross violations of humanitarian law, itself a crime under international law. Nuclear Policy 4(69)
Just as the use of British nuclear weapons would be illegal and criminal so is the threat to use them, which is what Trident deployment and the British Government’s reliance on nuclear deterrence is all about. And this is not just a belief of mine but a fact. If we look at the statement given to the International Court of Justice by Japanese lawyers in 1995 it states, at page 25, ‘The world’s citizens are in actuality being threatened at this very moment’. They explained, ‘Since Hiroshima and Nagasaki the nuclear powers have always hinted at the possibility that they might use nuclear weapons and have continued saying that it is legal. Nobody on earth can live their lives while putting their trust in this ‘humanity’ of the nuclear powers. This is because resigning oneself to a condition of servility , in which one’s very existence as a human being is controlled by the intentions of a handful of nuclear-armed states, goes against the nature of human being, and jeopardises our supreme and inalienable right to life, which is universally affirmed in the Universal Declaration of Human Rights and the International Covenant on Human Rights. This state of nuclear servitude also jeopardises our enjoyment of other human rights and basic freedoms, and therefore means that ‘human dignity’ is violated.” 63 4(70)
In para.48 of the Advisory Opinion, the ICJ argues that a credible deterrent is a threat. I quote, “Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence … necessitates that the intention to use nuclear weapons be credible. Whether this is a ‘threat’ contrary to Article 2, paragraph 4, [of the UN Charter] depends upon whether the particular use of force … would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it would be unlawful under the law of the Charter.”
Even US Judge Schwebel, in his section on State Practice on page 1, explains that states have threatened to use their nuclear weapons “by the hard facts and inexorable implications of the possession and deployment of nuclear weapons; by a posture of readiness to launch nuclear weapons 365 days a year, 24 hours of every day; by the military plans, strategic and tactical, developed and sometimes publicly revealed by them; and, in a very few international crises, by threatening the use of nuclear weapons. In the very doctrine and practice of deterrence, the threat of the possible use of nuclear weapons inheres“. And on page 3 he re-iterates the point, “If a threat of possible use did not inhere in deterrence, deterrence would not deter”. 64 4(72)
U.K. government policy is that Britain has a “credible nuclear deterrent”. This means far more than possession. A credible deterrent requires that the other side is convinced that the weapons would be used. So to have a credible deterrent means that preparations have been made to use the weapons and there is an intention to use them in some circumstances. One strand of strategic thinking is that there can be “existential deterrence”. This approach says that the possession of nuclear arms is in itself sufficient to constitute a deterrent. Existential deterrence is not currently practised by any of the main nuclear weapons states.
The former Permanent Under Secretary at the MoD, Michael Quinlan, has dismissed this approach. He said of existential deterrence, “We cannot however infer from this that our own armoury will be durably effective in contributing to deterrence, especially in times of pressure when it is most needed, if there are no realistic concepts for its use or if we have a settled resolve never to use it. … Deterrence and use in logic can be distinguished, but not wholly disconnected. We cannot say that nuclear weapons are for deterrence and never for use, however remote we judge the latter possibility to be. Weapons deter by the possibility of their use, and by no other route; the distinction sometimes attempted between deterrent capabilities and war-fighting capabilities has in a strict sense no meaningful basis … The concept of deterrence accordingly cannot exist solely in the present – it inevitably contains a reference forward to future action, however contingent. The reference need not entail automaticity, or even a firm intention linked to defined hypotheses; it need entail no more than a refusal to rule out all possibility of use; but it cannot entail less”. 65 4(74)
In fact the UK goes much further than this. According to one of the more detailed assessments of the range of options for sub-strategic Trident warheads, David Miller, for the International Defence Review in 1994, outlined 4 different uses, in the third one of which he says, “they could be used in a demonstrative role: i.e. aimed at a non-critical uninhabited area, with the message that if the country concerned continued on its present course of action, nuclear weapons would be aimed at a high-priority target.” 66 This is backed up by a recent letter of 28/9/2000 received from the Ministry of Defence which talks of sending a “signal” and which also leaves open the possibility of firing “all the nuclear weapons at its disposal” . 67 However, even a limited warning shot would not be lawful because its ‘purpose’ would be to warn that much worse will come and that worse would be a high-yield bomb that would be indisputably illegal and therefore the warning shot itself would be an illegal threat. I come back once more to the simple underlying purpose of the British nuclear deterrent – to threaten awful destruction. It is that awful destruction, that crime, that we three women were trying to prevent by our action.
Para.47 of the Advisory Opinion makes it clear that it is illegal to threaten to do an act if the act itself is illegal, “If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4” of the UN Charter. The United Kingdom possesses nuclear weapons, of a size that cannot be used discriminately, which are constantly deployed on submarines, ready to be used, and has made statements of conditional willingness to use them in British policy documents. This “stated readiness to use” its nuclear weapons is exactly the kind of threat that is prohibited under Article 2(4) of the UN Charter.
British nuclear warheads of 100 kilotons could never be used in conformity with the principles of necessity and proportionality and the requirements of international law. Therefore continuous active deployment combined with a stated readiness to use them constitutes an illegal threat to use nuclear weapons and as such is illegal. Refusal to Negotiate under Article VI of the NPT 4(77)
At para.99 of the Advisory Opinion, the ICJ appreciated “the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament”. It ruled unanimously, at para.105(2F), “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”. At para.99 it stated, “The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result nuclear disarmament in all its aspects by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.” 4(78)
The United Kingdom has made clear it has no immediate intention of eliminating its Trident system. The Strategic Defence Review specifies plans for upgrading Trident in the medium term and keeping options open for a replacement in the long term. Recent press revelations and a report by Alan Simpson MP present evidence of the new refurbishment programme at the Atomic Weapons Establishment at Aldermaston costing one hundred and fifty million pounds sterling and of a linkage with the US “son of Trident” programme to upgrade nuclear warheads. There is also proof of increased scientific collaboration between the United Kingdom, France and the US. Simpson’s report concludes, “there is strong evidence that Britain is currently involved in the development of prototype designs to replace the current Trident nuclear warhead”. 68 4(79)
Nor has the United Kingdom been working in good faith within the UN for nuclear disarmament resolutions. For instance, in 1998 the United Kingdom voted against the resolution, “Towards a Nuclear Weapon-Free World: The Need for a New Agenda”. Ian Soutar, the British ambassador to the UN, said that the resolution contained measures that were “inconsistent with the maintenance of a credible minimum deterrent”. 69 The United Kingdom also voted, for the third consecutive year, against the 1999 UN Resolution on “Follow-up to the ICJ Advisory opinion”. 70 4(80)
The United Kingdom’s refusal to stop deploying Trident and to start its practical disarmament of Trident flouts Article VI of the NPT as interpreted by the ICJ in paras.99 and 105(2F) of the Advisory Opinion. The continuing development of new nuclear weapons is also a breach of Article VI and constitutes a violation of international law. At the recent Review Conference of the NPT in New York in May this year, although the United Kingdom joined in the consensus “unequivocal undertaking by the nuclear weapon states to accomplish the total elimination of their nuclear arsenals”, 71 nevertheless they have not done anything practical to put this into effect. The original NPT promises by the nuclear weapons states were not fulfilled. We must look at the facts on the ground. The United Kingdom continues to fund research into new nuclear weapon systems, continues to deploy armed nuclear missiles and continues to state that it relies upon nuclear deterrence. In this context it is not surprising that ordinary citizens have felt the necessity to try to begin the disarmament themselves. Conclusion 4(81)
The Government has frequently been asked but has never explained to the ICJ or to the British public how it could possibly use its nuclear weapons legally. It has not even been able to outline one hypothetical example. The government has, in fact, been very careful to say that it could never foresee the precise circumstances and could therefore not determine the legality until the time came to use them. It is hard to see how, with no criteria apparently available to use as guidance, any responsible Commander could make a decision to unleash Trident missiles within the probable fifteen minutes time frame that would be available in a particular instance. It is clear that the British Government has to date been unable and unwilling to open itself to independent legal scrutiny.
The form of words the government usually uses is: “the legality or otherwise of any specific use of any nuclear weapons … can only be determined in the light of all the circumstances applying at the time such use is being considered. It is impossible to anticipate in advance with any confidence the exact circumstances which might arise, and to speculate on particular hypothetical cases would serve no purpose”. 72 4(83)
It is absurd to think that, if no such legal scrutiny and exercises had taken place before, any thorough legal scrutiny of an actual use of nuclear weapons could take place in the heat of a war of self-defence in which the very survival of the United Kingdom might be at stake. According to the ICJ this is the only possible circumstance in which the use of nuclear weapons might conceivably be used. The fact that the British Government cannot identify a single hypothetical case that could be presented into the public domain for independent legal scrutiny suggests there are none.
Finally, with the permission of the Court, I would like to share some extra information from the classic corpus of post WW2 war crimes trials, which directly counter the impression sought to be conveyed by Counsel to the Crown to the effect that nothing can be illegal so long as it assists the UK in a situation it defines as one of extreme necessity.
In the Hostages Case the Tribunal clearly stated that “the rules of International Law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation.” 73 This passage was prominently cited by the Commission in the concluding Digest of Law and Cases 74 as well as being followed in the German High Command Trial where the Tribunal explicitly repudiated as “a denial of all laws” the theory that “the laws of war lose their binding force in case of extreme necessity, which was said to arise when the violation of the laws of war offers other means of escape from extreme danger, or the realization of the purpose of war – namely, the overpowering of the enemy.” 75
In the same case the Tribunal placed use of poisoned arms in a category of conventional and customary rules that “do not lose their binding force even if the breach would effect an escape from extreme danger or the realization of the purpose of law.” 76 And it also went on (at page 127) to quote the key sentence in the Judgement of the Tribunal in the Krupp Trial from which I would like to quote a full paragraph: ” However, quite apart from this consideration, the contention that the rules and customs of warfare can be violated if either party is hard-pressed in any way must be rejected on other grounds. War is by definition a risky and hazardous business. That is one of the reasons that the outcome of war, once started, is unforeseeable and that, therefore, war is a basically unrational means of ‘settling’ conflicts – why right-thinking people all over the world repudiate and abhor aggressive war. It is an essence of war that one or the other side must lose and the experienced generals and statesmen knew this when they drafted the rules and customs of land warfare. In short these rules and customs of warfare are designed specifically for all phases of war. They comprise the law for such an emergency. To claim that they can be wantonly – and at the sole discretion of any one belligerent – disregarded when he considers his own situation to be critical, means nothing more or less that to abrogate the laws and customs of war entirely.’“ 77
This concludes my argument on the illegality of Trident.
The implication of all this is that British Government officials involved in the Trident programme, from the Prime Minister down, including all members of the Executive and the Lord Advocate, and the military personnel involved, are all international criminals subject to trial before an international panel similar to the Nuremberg or Tokyo Tribunal or the current Tribunals dealing with the atrocities in Rwanda and the Former Yugoslavia.
So far no court of law or Tribunal has upheld my view (which is shared by millions of other people around the world) because no court has been allowed to look directly and thus to rule on this particular issue of the legal status of the UK’s Trident system. This is not for want of trying.
In fact, many citizens, over the last 20 years, have put motions and petitions before the Lord Advocate and Attorney General asking that the UK nuclear forces be ruled unlawful under the Geneva Conventions Act or that the issues at least be examined impartially in a public inquiry. Many citizens have asked for legal permission at numerous magistrates courts around England and Wales to institute private prosecutions against Ministers and Military Leaders, indicting them for conspiracy and incitement to violate the most fundamental principles of International and United Kingdom Law – but to no avail – so far. 78 5(4)
These attempts still continue. In answer to a written question put by Tony Benn M.P. in December last year, the Solicitor General admitted that, “A request for a private prosecution under the Geneva Conventions Act 1957 was received last year. However, the Law Officers take the view that the application of the Government’s nuclear deterrence policy does not involve an infringement of either domestic or international law, and accordingly permission was not given.” 79 Many citizens have also approached the police authorities to ask them to investigate the crime and take legal proceedings in the public interest. But all to no effect. The rule of law is still being thwarted.
I gave evidence from the witness box as to these attempts, some of which I had personally been involved in. The Sheriff reported the evidence I gave to this effect at page 23. 80 I said then and I say again that this is a serious failure and indictment of the Judicial System in both Scotland and England.
In view of the general failure of the Executive to allow remedies to be taken by ordinary citizens against crimes being committed by the State, it is not surprising that ordinary people, like us three women, have felt the absolute necessity to try to work with others to prevent this crime ourselves.
I hope that this Court will now help to remedy this situation which is one of the utmost seriousness, involving as it does the right of ordinary people to protect themselves and others and their planet from utter destruction. I hope also that this Court, although it has not allowed the addition of another question to look at the legality of Trident specifically, will nevertheless see the wisdom of at least recommending, in the final ruling, that there be an immediate independent judicial enquiry into the legal status of Trident. It is just not good enough for the Crown to lamely repeat the official government line that Trident is lawful. At Greenock we brought evidence to show that Trident is not only unlawful but also criminal. This decision should not be undermined in any way unless and until a full, independent, publicly accountable inquiry into Trident and present British policy is set up with opportunities for all concerned citizens to present full evidence backed up by testimony from expert witnesses.
The next part of the Petition at 1(c) is also factually inaccurate in that it says that Professors Boyle and Rogers and also Rebecca Johnson were all “held out as
experts on aspects of the development and current content of international law”. 81
In fact Professor Boyle was the only one of the five expert witnesses who was held out as an expert on the content of international law. He spoke to its application to nuclear weapons in general and Trident in particular and provided an objective framework for our international law enforcement defence and our necessity defence as well as providing the reasoning and understanding as to why there was no malice in our actions. He also gave evidence on the criminality of nuclear deterrence policy and the criminality of deployment of British Trident submarines. 82 6(3)
He not only referred to the Advisory Opinion of the ICJ but also directly to the contents of international humanitarian law itself especially the Nuremberg Charter, Judgement and Principles that he referred to, for short, as Nuremberg. 83 It is also important to point out that despite the Sheriff’s ruling on the relevance and competence of Professor Boyle, despite the prior advance notice of all of our expert witnesses including the lodging of documents, the Procurator Fiscal did not lead an expert international law witness to counter the evidence of Professor Boyle’s opinion that the threat or use of Trident would contravene international law, that British nuclear deterrence policy was criminal, that the deployment of British Trident submarines was criminal and that individuals have a right to try to stop war crimes. 84 6(4)
Rebecca Johnson’s evidence was also never countered. She was held out as an expert in international security and the relations between the nuclear powers and the non-nuclear powers. She spoke to the nature of the objective facts on the 8th June, a time when the UK was engaged in bombing Yugoslavia. 85 She also spoke to the perception by foreign governments that they felt threatened by the UK Trident system 86 and to Trident being “an ever present danger” 87 She was never held out as an expert in international law although she was held to be an expert on the implementation of the Non-Proliferation Treaty which she testified as having been breached by the UK 88 6(5)
Professor Rogers evidence was not countered either. He was called as an expert on the specifications and contents of the present British nuclear arsenal, 89 contents of current British Defence Policy 90 the likely and foreseeable consequences of use of the 100 kt Trident nuclear warheads, that are roughly 8 times more powerful than the Hiroshima bomb that was found to be a criminal act under international law in the Shimoda Case, 91 and the ever-present danger of nuclear accident. 92 This testimony was essential to give an objective analysis of how dangerous and imminent the threat of nuclear war and accident actually is and to testify that the warheads deployed on Trident could never be capable of distinguishing between civilian and military targets. He was never held out as an expert on international law.
The following section of the Petition at 1(d) is also seriously misleading. It includes a much-abbreviated extract from the Sheriff’s ruling and states that she submitted that the pannels were trying to stop the UK from “continuing to implement its policies in relation to nuclear weapons”. 93 This statement’s use of the word “policies” gives a cloak of legitimacy to what the government is doing because most people unthinkingly assume that official policies are obviously lawful. This is part and parcel of the official mind-set that cannot see the UK nuclear forces as other than legitimate military national defence forces and sees our disarmament of ‘Maytime’ as some kind of political campaign rather than what it actually was – the prevention of gross breaches of international humanitarian law – namely preparations for indiscriminate mass attack.
In fact the Sheriff never held at any time that we were merely trying to stop the UK from “implementing its policies”. She had listened carefully to our evidence and submissions and concluded that we acted without malice because we had good reason to believe that the use and threat of British Trident was illegal and given the enormity of the risks involved considered we had a right to try to stop that illegality. She also reported that we acted out of necessity and that whatever the state of the law we would still have felt justified in trying to protect ourselves and others. The Court has the full transcript of the Sheriff’s ruling and also a copy of her full Report and so will be able to make its own mind up. I will not quote it here because to be fair it needs to be considered in its entirety and I am confident that the judges will consider it in its entirety.
To proceed to the last section of the first part of the Petition -1(e), it is important to point out that only the charges of malicious mischief have been mentioned. However, there was considerable discussion about the inconsistency of acquitting on the malicious mischief charges whilst convicting on the theft charges. One of the analogies used originally by Mr. McLaughlin at Greenock is very pertinent and bears repeating. He used an analogy of a local person finding a car in a remote area, with a bomb in it, which he knows is destined for a near-by town centre and which will cause damage and death. The person rips the tyres and then rolls it into a nearby loch, thus attempting to prevent the crime. He felt it was inconceivable that this act of crime prevention would be charged as theft. He felt the analogy was direct because the theft and the malicious mischief in the Greenock case arose out of the same set of facts. 94 8(2)
In fact the Sheriff agreed and held that we had acted without the criminal intent required for the constitution of any of the crimes charged in the indictment and directed the jury to acquit the three of us of all four charges including the alternate charge of stealing.
There was sufficient evidence – virtually unchallenged by the prosecution – to entitle the Sheriff to hold as she did. The genuineness and sincerity of our convictions about nuclear weapons were not challenged in the Greenock case and were accepted by the Sheriff.
There was no evidence put to show that our views were views which no reasonable persons could reasonably maintain. On the contrary, she made several statements to the effect that our reasonableness was never rebutted. 95
Answer 2 In the foregoing circumstances the questions of law should be answered as follows:
Question 1 asks “In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?”
My short answer is – Yes, if an issue of customary international law is properly raised.
An issue of customary international law was integral to our defence and having been properly presented in the case and appropriate evidence on it tendered to the Court the first question of law should not be answered in the negative.
It is not obvious why leading evidence on the content of customary international law should not be competent in Scottish criminal proceedings where an issue of international law arises. An expert international lawyer properly testifies to the content of international law but not to its application within domestic jurisdiction which is, of course, a matter for the court.
There is a word in the phrasing of this question that could be misleading in the context of the argument put forward at Greenock. The word is ‘customary’. However, we relied on both customary and treaty law. Within the context of humanitarian law, customary international law is seldom separated from treaty law because the two sources overlap. Humanitarian law is partly codified in the Hague and Geneva Conventions – or treaties. Customary law is therefore not of a completely different kind. I would therefore prefer not to separate out the two sources in this particular question.
It is worth pointing out in this context that some customary international law was codified in an international convention and then was domesticated, so to speak, by an Act of Parliament. I refer of course to the Geneva Conventions Act of 1957 and the Geneva Conventions (Amendments) Act of 1995. These Acts were passed in the case of the 1957 Act ‘to enable effect to be given to certain international conventions done at Geneva’ 96 and in the case of the 1995 Act ‘to enable effect to be given to the Protocols additional to the Geneva Conventions of 1949 done at Geneva’ 97 They show the connection between customary international law, treaty and domestic law and how the principles of customary law bind them all together. They apply in Scotland.
Customary international law is part of the common law of England and Scotland. Sir Hartley Shawcross, the UK prosecutor at Nuremberg, said, “In England and the United States our Courts have invariably acted on the view that the accepted customary rules of the Law of Nations are binding upon the subject and the citizen, and the position is essentially the same in most countries.” 98 9(9)
The Nuremberg Principles, which were adopted in 1950 state “the fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve that person who committed the act from responsibility under international law.” 99 9(10)
I also hold that war crimes and crimes against humanity are subject to universal jurisdiction under customary international law and may be prosecuted by any state. Dixon states, “Under International Law, there are certain crimes which are regarded as so destructive of the international order that any state may exercise jurisdiction in respect of them. This is a jurisdiction that exists irrespective of where the act constituting the crime takes place and the nationality of the person committing it”. He goes on to say, “it remains the case that … war crimes and crimes against humanity … are crimes susceptible to universal jurisdiction under customary international law and may be prosecuted by any state”. 100 9(11)
As I said, customary international law is part of the common law of England. Lord Lloyd of Berwick stated in the Pinochet case “As already mentioned, the common law incorporates the rules of customary international law. The matter is put thus in Oppenheim’s International Law [vol.1, 9th edition, 1992, ed. Sir Robert Jennings QC and Sir Arthur Watts QC], p. 57: ‘The application of international law as part of the law of the land means that, subject to the overriding effect of statute law, rights and duties flowing from the rules of customary international law will be recognised and given effect by English courts without the need for any specific Act adopting those rules into English law.’” 101 9(12)
Lord Lloyd, in the same case, said, “the requirements of customary international law … are observed and enforced by our courts as part of the common law” and referred to “well-established principles of customary international law, which principles form part of the common law of England”. 102 9(13)
See also the opinion of Lord Millett in the Pinochet case where he says, “Customary international law is part of the common law” and of Lord Phillips where he refers to “the common law of England, of which international law forms part”. 103 9(14)
The same must be true in Scotland. Although Scotland has a distinct legal system, it is part of the UK. Since the UK is ‘the State’ for the purposes of public international law, the domestic effect of international law should not differ according to which part of the UK is involved. Just as a treaty to which the UK is party is enforceable throughout the UK if it has been incorporated into domestic law by statute, so rules of customary international law have the same internal effect throughout the UK. This is acknowledged in Oppenheim’s “International Law” on p. 56, where it says, “As regards the United Kingdom all such rules of customary international law as are either universally recognised or have at any rate received the assent of this country are per se part of the law of the land.” 104 9(15)
The question then is: what is the relevant rule of customary international law? How is the court to ascertain it? Rosalyn Higgins QC, now the UK Judge on the ICJ has stated, “international law … is not a foreign, unknown law… All [the municipal court] has to do, with the assistance of counsel before it, is to examine the sources of international law on the topic to hand.” 105 9(16)
However, where the existence of a rule of customary international law is at issue before a national court, correctly determining its existence and content is critical. It would be foolish to proceed on the false notion that all members of the legal professions in Scotland, or elsewhere, have the knowledge and training to deal with international law when it arises in their courts. A visit to Argyll and Bute District Court would be a salutary lesson in the state of knowledge and respect for international law! The Procurator Fiscal, Mr. Donnelly, has continually claimed that “international law is not real law and does not apply in Scotland”. It is in the context of such an ignorant and biased view of international law that expert testimony is essential.
Even in more informed courts expert assistance is sometimes required. In Compania Naviera Vascongado v. S.S. Cristina at p.497, Lord Macmillan said: “it is a recognized prerequisite of the adoption in our municipal law of a doctrine of public international law that it shall have attained the position of general acceptance by civilized nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative text-books, practice and judicial decisions. It is manifestly of the highest importance that the courts of this country before they give the force of law within this realm to any doctrine of international law should be satisfied that it has the hallmarks of general assent and reciprocity.” 106 9(18)
The fact that customary international law is part of the law of the land and therefore, unlike foreign law, does not have to be proved as a fact should not mean that expert evidence cannot be admitted in order to establish the existence or content of particular rules.
Article 38 of the Statute of the International Court of Justice, is widely accepted as enumerating the main sources of international law as applied by the ICJ. After speaking of custom – “international custom, as evidence of a general practice accepted as law” – it refers to “the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” 107 Article 38(1)(d) is authority for judicial reference to publicists as a means of determining rules of international law.
In the Trendtex case, Lord Denning referred to the need for the courts to determine the rules of international law “seeking guidance from the decisions of the courts of other countries, from the jurists who have studied the problem, from treaties and conventions” (emphasis added). 108 9(21)
There are several domestic cases in which the opinions of international law text-book writers have been relied on. See, for example, the Piracy Jure Gentium case where the Judicial Committee of the Privy Council relied extensively on such opinions in order to determine whether actual robbery was an essential ingredient of the crime. At page 588 it states, “In considering such a question, the Board is permitted to consult and act upon a wider range of authority than that which it examines when the question for determination is one of municipal law only. The sources from which international law is derived include treaties between various States, State papers, municipal Acts of Parliament and the decisions of municipal Courts and last, but not least, opinions of juriconsults or text-book writers.” 109 The helping hand of testimony of ‘juriconsults’ must be useful in at least some cases, of which our case at Greenock was a good example. It may, indeed, provide the best way to get the points before a busy trial judge. See also Radwan v. Radwan regarding the status of consular premises and where you will note that the Judge relied extensively on “the consensus of authors learned in international law, the approach of courts of law abroad.” 110 9(22)
Extensive reference to the writings of learned authors was also made in the Pinochet case. There was clearly no need for expert evidence as to the content of international law in that case since, as Lord Goff observed, three of the fourteen counsel who appeared for the appellants and their supporters were “distinguished Professors of International Law”. 111 9(23)
Hearing an expert give evidence in person is similar to relying on her writing, but is more objective and reliable since an expert witness has an overriding duty to the court, not unlike the duty owed by an advocate – overriding any obligation owed to the person from whom she has received instructions or by whom she is paid. As Professor Ian Brownlie QC has observed, it is “obvious that subjective factors enter into any assessment of juristic opinion, that individual writers reflect national or other prejudices and, further, that some publicists see themselves to be propagating new and better views rather than providing a passive appraisal of the law”. 112 9(24)
Taking evidence from an expert witness as to the content of customary international law should not be excluded given that “International law is a living and expanding code” – as Viscount Sankey stated in the Piracy Jure Gentium case. 113 (Lord Millett adopted this in the Pinochet case. 114 ) In short – text-books go out of date.
In the absence of any clear legal authority on the matter in Scotland (or elsewhere in the U.K. for that matter) and whatever the technical position, a court dealing with the possible application of customary international law plainly requires expert professional guidance upon it from qualified international lawyers. This is apparent from the confusion, doubt and ill-informed comments on international law that are being heard from both lawyers and magistrates in the lower District Courts, where most of the disarming citizens are appearing and attempting to have their international law arguments accepted. If customary international law forms an integral part of Scots Law, as I have argued it does, but most Scottish Courts are unfamiliar with it, the interests of justice demand that they should be able to call on experts to assist them with the content and interpretation of international law.
It is not uncommon in other jurisdictions to introduce such evidence. For instance, the American Law Institute’s highly authoritative Restatement of the Foreign Relations Law of the United States, states in Section 113(2) that “courts may in their discretion consider any relevant material or source, including expert testimony, in resolving questions of international law.” See also the discussion at pages 60-62 of the Restatement. On page 61, paragraph c for instance, it says, “Some judges have adopted the practice of receiving evidence, including expert testimony, on questions of international law. No rule precludes that practice and the courts tend to reject challenges to it based on the argument that international law must be treated like domestic laws for this purpose.” 115 9(27)
The Canadian courts, also, do not seem to have any problem with the introduction of evidence as to international law. See R.v. Bonadie, at page 31 where it states that “Two experts in the field of international law and consular immunity testified on this application. They held widely divergent views on vital issues”. 116 9(28)
In German and Austrian law of procedure, fundamental principles of “oral proceedings” and of “directness” are interpreted to mean that the parties are entitled to have their experts, including experts of the law, testify directly and orally to the Court. See Articles 128 and 411 of the German Code of Procedure and Articles 176 and 357 of the Austrian Code. For instance, Article 411(3) states “The court can order that the expert has to appear in the court hearing personally to explain his written opinion”. 117 These basic principles find their strongest expression in criminal cases. By way of example, the July 15, 1999 decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, discuses the Jordic case which was heard in the Oberlandesgericht in Dusseldorf, Germany, in 1997. (The Oberlandesgericht is the middle level appeal tribunal in Germany.) Jordic had been charged in Germany with war crimes carried out in Bosnia and Herzegovina. Extensive expert testimony was given pertaining to international humanitarian law, with a very similar subject matter, in fact, to that given by Professor Boyle in the Greenock case. To quote Note 155, “The conflict in Bosnia-Herzegovina was an international conflict for the purposes of Article 2 of the Fourth Geneva Convention …. The expert witness Fischer pointed out that, by using the term international humanitarian law applicable to this conflict, the United Nations Security Council has used the term usual in international terminology to refer to the law applicable to international armed conflicts” (my emphasis) 118 9(29)
My argument is not that expert testimony on international law is always competent. There may be some crystal clear cases where there is no room for it. My argument is that there are some cases (like at Greenock) where such testimony is not only competent, but crucial to an understanding of the defence. The trial judge must have some discretion in the matter and his or her discretion should not be overturned without evidence of a very clear error.
In our case, the content of international law was pivotal to showing that an international crime was being committed by the possession and deployment of Trident – it was the very crime we were trying to prevent. There could not have been a fair trial without the examination of international law as it applied to the UK. It was crucial to an understanding of the defence. Because such law is complex and the courts are relatively unfamiliar with it they sometimes need experts to help them.
I also think it is important to acknowledge the Sheriff’s own reasoning for allowing our expert witness, Professor Boyle, to lead evidence on the content of customary international law as it applies to the UK. She says at page 59 of her Report, “it was clear that … the defence was not simply going to be based on reasonable belief plucked out of the air, or simple necessity”. She also said that she “was not entirely sure how much she could rely on Mr. Mayer and Mr. McLaughlin to address me on the international law should this really be at issue.” At page 60, she goes on to say that “in principle I could not see why an expert in international law could not address me especially if the law was the underlying reasonable excuse in the mind of these women”. She therefore “allowed evidence so far as the defence of necessity at the time of the offence was concerned and also, the law by an expert to assist me in reaching a decision.” At the end of her Report at page 134 she re-iterates, “it was absolutely necessary for expert evidence to be led from an expert in international law, and whether or not it has ever been done in Scotland before seemed not to matter if I considered it essential. It did not seem appropriate that counsel, not necessarily skilled in international law should address me on such a vital part of the defence.” 119 9(32)
In any case involving international law, therefore, the domestic court should be permitted to decide whether to allow an expert to be called. The overall objective must be to ensure a fair trial with equality of arms. Article 6(1) of the European Convention on Human Rights guarantees the right to a fair trial. And Article 6(3)(d) guarantees a person charged with a criminal offence the right to “obtain the attendance and examination of witnesses on (her) behalf”. The Sheriff was therefore entitled to conclude that unless expert evidence as to customary international law was admitted, the defendants would not have had a fair trial because customary international law was an essential part of their defence.
It might also be useful to note that I asked just one well-known International Lawyer in England, Professor Nicholas Grief, 120 which cases he had appeared in as an expert witness on international law as it applies in the UK and he cited at least 5 cases from 1984 to 2000. The first – Langran (Inspector of Taxes) v. Hayter, Exeter County Court, 27 November 1984 – went to the Court of Appeal on 4 June 1985 but his affidavit evidence as to the legal status of nuclear weapons was not an issue in the appeal. The most recent of his appearances, where he gave viva voce evidence – R v Crane and others, West Berkshire Magistrate’s Court, 16 February 2000 – was in another Trident Ploughshares case. It is thus clear that in England evidence can be led as to the content of customary international law as it applies to the UK.
In other jurisdictions too International Law experts have been accepted as relevant and useful. Perhaps I can remind you of the testimony of Professor Boyle at page 11A-D where he confirms that he had “testified as an expert witness on nuclear weapons and international law several times in the United States courts, State and Federal”, “in United States military court martial proceedings” and “also in Canada too”. 121 9(35)
The High Court of Justiciary should not answer this question to the effect that it is never competent to lead the evidence of an expert international lawyer as a witness in Scottish criminal proceedings as to customary international law. It would be unwise to leave the courts in a position where they are unable to get advice from experts on subjects outside their knowledge and expertise.
Question 2 asks “Does any rule of customary international law justify a private individual in Scotland in damaging or destroying property in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?”
This question is not appropriate in the circumstances of this case and should not be answered.
This second question of law as stated is premised on the view that our intent in doing what we did amounted in law to no more than a demonstrative protest at the U.K.’s possession of nuclear weapons and its policies and actions in relation to them. This misrepresents and wholly underestimates our declared intent. Further, our plea of justification – in effect upheld by the Sheriff – does not depend on our objections to the policies and weapons, but on the alleged criminality of the U.K.’s nuclear weapons posture. The question is thus inept and does not advance matters. The Court should decline to answer it.
If the Court nevertheless does intend to answer this question then I must point out several matters.
i) With respect to the way the question asks whether there is any rule to justify individuals carrying out specific actions it must be pointed out that this is beside the point. I could just as easily say that there are no specific rules preventing such action. It progresses us no further. One would not expect international law which relates to very general and wide-ranging principles and rules to specify how criminal actions carried out by a specific State, like the UK, can be stopped by its own citizens in Scotland.
Before I continue it may be worth pointing out here that international law nevertheless does specifically subject war crimes, crimes against peace and crimes against humanity to universal jurisdiction and thus it logically follows that actions intended to prevent these crimes can also be carried out universally. Dixon states, “war crimes and crimes against humanity … are crimes susceptible to universal jurisdiction under customary international law and may be prosecuted by any state”. 122 10(7)
To continue – I hold that it is an integral part of any civilised judicial system that there is a right to prevent crimes, especially those as serious as the conditional intention to use weapons of indiscriminate mass murder. Certainly there is an undisputed right for individuals within the UK as a whole to use reasonable force to prevent the commission of serious crimes.
In the same way as the International Court of Justice clarified that although there is no specific authorization of the threat or use of nuclear weapons in international law, there is also no universal prohibition 123 and then went on to apply the principles and rules to the question of the use or threat to use nuclear weapons in general, so should we here, now look at the principles of law and apply them impartially and with wisdom to the issues before the Court today.
I think this Court must face squarely the psychological processes that are taking place underneath the whole of this LAR process including this hearing. We are not in a vacuum. We are all part of a society that has been traumatised and corrupted by the actions of our State over the last hundred years, which has, step by step, led from the brutal excesses of our colonial past, to the concentration camps of the Boer War, to the aerial bombardment of German city centres, to the ongoing bombarding of civilian infrastructure in Iraq that is continuing at this very moment by the RAF, to our present descent into official weapons of indiscriminate mass murder. Moreover, neither the UK, nor the other Allied States, has ever been confronted by the world community in a War Crimes Tribunal, nor unlike Germany and Japan, ever had to apologise, pay compensation and come to terms with its own wrong-doing.
This terrible legacy from the past means that it is very difficult for many people, including some in this Court, to look at British nuclear weapons, at Trident, at what is going on at Faslane and Coulport, in any objective and rational manner. There is a fear of what implications this may have on past crimes and present policies and a desire to try to keep these crimes closed in the cupboard rather than face the consequences, which would undoubtedly affect our view of the United Kingdom’s place in the world. It is easier to think in terms of strict good and evil, perfect friends and monstrous enemies, final solutions – rather than face the complexity of the real world and to see Trident for what it really is and face up to the necessity for global justice and the rule of law in order to encourage our own and others’ long-term security.
For in fact, the nuclear weapons on board Trident are anathema to law. To accept the legality of Trident – is to accept the legality of mass murder – is to bring the law into contempt. The very basis of law is to protect innocents but the very basis of nuclear weapons is to threaten mass destruction. Clever lawyers may attempt to distort the law and prove that somehow if the State authorizes weapons of mass destruction then the matter is closed because the State can choose whatever means it likes to ‘defend’ itself but this is a corruption of the law and any State that does this ultimately loses legitimacy. The law cannot survive such corruption. Our society cannot survive such mendacity, as we can see if we care to look at the crumbling morality around us.
The UK Prosecutor, Sir Hartley Shawcross, in his final speech at Nuremberg, in 1946. said, “There is no rule of International Law which provides immunity for those who obey orders which – whether legal or not in the country where they are issued – are manifestly contrary to the very law of nature from which International Law has grown. If International Law is to be applied at all, it must be superior to State Law in this respect, that it must consider the legality of what is done by International and not by State law tests.” 124 10(13)
He went on to say, “It is true that the lawyers and the statesmen who, at the Hague and elsewhere in days gone by, built up the code of rules and the established customs by which the world has sought to mitigate the brutality of war and to protect from its most extreme harshness those who were passive non-combatants, never dreamed of such wholesale and widespread slaughter. But murder does not cease to be murder merely because the victims are multiplied ten millionfold. Crimes do not cease to be criminal because they have a political motive.” 125 10(14)
Judge Bedjaoui, the President of the International Court of Justice said in the recent Advisory Opinion, in 1996, in respect of nuclear weapons, “By its very nature the nuclear weapon, a blind weapon … has a destabilising effect on humanitarian law, the law of discrimination which regulates discernment in the use of weapons used. Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a major challenge to the very existence of humanitarian law, not to mention their long-term harmful effects on the human environment, in respect to which the right to life may be exercised. Until scientists are able to develop a ‘clean’ nuclear weapon which would distinguish between combatants and non-combatants, nuclear weapons will clearly have indiscriminate effects and constitute an absolute challenge to humanitarian law. Atomic warfare and humanitarian law therefore appear to be mutually exclusive; the existence of the one automatically implying the non-existence of the other.” 126 10(15)
Judge Weeramantry, also in the ICJ Advisory Opinion Hearings, stated, “all the postulates of law presuppose that they contribute to and function within the premise of the continued existence of the community served by that law. Without the assumption of that continued existence, no rule of law and no legal system can have any claim to validity, however attractive the juristic reasoning on which it is based.” 127 10(16)
ii) Now I would like to unpack a little the word ‘justify’. This question we are looking at arises out of the Greenock Trial and this context is of the utmost importance because a different answer could be given depending on what the specifics of the case may be. In other words generalities are likely to be misleading and dangerous. It is therefore imperative to continually link the question to the specifics of the Greenock Trial. Underlying the question, there is an implication that there was no justification for damaging and destroying Trident related equipment.
I refute this. I hold that there is justification in UK and in Scots law for private individuals to damage or destroy if they need to do this to prevent a terrible catastrophe or injury or loss of life or stop the commissioning of major crime – especially if the law enforcement agencies refuse to stop it for you. Most legal systems have similar legal justifications.
For instance, if someone took a loaded machine gun from a man in a crowded underground where he was threatening people with it and threw it under the train where it was destroyed – that destruction would be considered as justifiable.
The Trident context is more controversial because it involves State complicity – which is where impartial common sense must come in along with a good moral sense and a global perspective. Maybe it is easier psychologically to place the justifiable acts of property destruction into a proper perspective if we put them into another context – far enough away to be more balanced. For instance, I am sure that no-one in the Court would say that an Iraqi citizen would not have been justified in attempting to destroy an essential part of the chemical weapon system that was used to gas the village of Halabja in order to prevent that terrible crime taking place or to suggest that such an act would have been criminal.
And to take another example, during the Nuremberg trials various industrialists who had manufactured the Zyklon B gas used to exterminate victims in the Nazi concentration camps were convicted and hanged as criminals 128 and I am sure that no-one here would suggest that any citizens would be criminal if they had tried to stop that Zyklon gas from reaching the concentration camp in the first place by destroying any of the equipment used. It would be a nonsensensical legal system that could punish the perpetrators of such a horrendous crime after it had taken place but not allow people to prevent the crime in the first place. 10(21)
A similar case can be made out to justify the disarmament of ‘Maytime’. It is important to remind you of the arguments I made earlier about the specific illegality and criminality of Trident. May I also stress that we were acting to prevent crimes that came out of the specific British Trident nuclear weapons system and not acting against nuclear weapons “in general”. It is also important to remind everyone that we used reasonable force in the circumstances. We did not blow up the nuclear submarine base or set fire to the research lab. We carefully, nonviolently and safely threw the equipment from Maytime into a deep loch so that it could not be used again to help Trident in its criminal activities.
iii) The question asks us to look at the rules of customary international law but in fact we have to look at the inter-relationship between international and domestic law. For instance Article 38 of the Statute of the International Court of Justice sets forth the sources of international law and states that one of the sources is what is known as “the general principles of law recognised by civilised nations.” 129 One of these general principles of law recognised by all civilised nations is the duty to act to prevent the commission of a crime. And so, under international law, as a general principle of law, there is a duty to act to prevent the commission of threatened war crimes, crimes against peace, and crimes against humanity. As a matter of common law there is also a common law right to take steps necessary to inhibit this type of activity.
In other words we can look to both international and to national law to give authority to the disarmament of ‘Maytime’. This could be a source of confusion so I would like to try to unravel it a bit.
In some international law contexts there may well be a problem of deciding which jurisdiction – Scots or IL – applies, because it is conceivable for an act to be technically lawful within one jurisdiction but not the other.
Nevertheless, as the US Prosecutor, Dodd, said at Nuremberg, “The Tribunal will give a warning …mankind will know: that no crime will go unpunished because it was committed in the name of a political party or of a State, that no crime will be passed by because it is too big; that no criminals will avoid punishment because they are too many.” 130 10(26)
I hold that since Nuremberg any of the Nuremberg Crimes i.e. Crimes against Peace, War Crimes and Crimes against Humanity, can never technically be lawful within any domestic jurisdiction – there is absolute adherence to these Nuremberg Principles and they take precedence over all other legal systems.
Moreover, within our context here, I hold that under international law there is a right, which in certain circumstances, for instance if you are a Commander in the field, even becomes a duty, for anyone to prevent the commission of the Nuremberg crimes wherever they are taking place, regardless of the state of the domestic law in that individual’s country.
The right to prevent the commission of a crime against humanity can be derived from the principles of humanity coupled with that of individual responsibility.
The Martens Clause (as contained in the Additional Protocol 1 of 1977) refers to the “principles of humanity”. It states “In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of the public conscience.” 131 10(30)
The ICJ explained that the Martens Clause was “an effective means of addressing the rapid evolution of military technology” 132 and applied to nuclear weapons. For a full discussion of the implications please refer to Judge Weeramantry at page 34 to 36 of his opinion 133 and to Moxley’s book at page 210-214 134 where they explain the incompatability between the Martens Clause and nuclear weapons. As Judge Weeramantry concludes “The attempt to place nuclear weapons beyond the reach of these principles lacks the support not only of the considerations of humanity but also of the considerations of logic”. 135 10(31)
At para. 95, the ICJ referred to “the overriding consideration of humanity” (my emphasis) 136 See also the Corfu Channel Case, ICJ Reports 1949, pp. 4, 22, where the ICJ held that Albania’s obligations were based on “elementary considerations of humanity, even more exacting in peace than in war” 137 10(32)
Surely the principle of humanity does not only bind States? In Oppenheim’s International Law, at page 998, concerning the evolution of the principle that States have the right to punish foreign nationals for crimes against humanity, the authors refer to “recognition of the supremacy of the law of humanity over the law of the sovereign state when enacted or applied in violation of elementary human rights in a manner which may justly be held to shock the conscience of mankind.” 138 10(33)
The supreme law of humanity must bind individuals as well as States and involve responsibilities as well as rights. As the Nuremberg Tribunal held, the essence of the Nuremberg Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the State. It is but a short step from the Nuremberg Tribunal’s conclusions about individual responsibility to the position advocated by Trident Ploughshares. As Edmund Burke once said, “The only thing necessary for the triumph of evil is for good [people] to do nothing.” We none of us ever know the ultimate consequences of what we do. We may never know how effective our acts of disarmament and civil resistance are. But we certainly know that an acquiescent and supine public leads to power abuses by governments. One of the reasons nuclear weapons have never yet been used on purpose since Hiroshima and Nagasaki is because of the sheer weight of public condemnation and concern and the stigma that would attach to any State that did use them. Such public pressure has to be continually shown in order to be effective. It is a responsibility that is terrifying in its necessity. And, of course, such public pressure alone is not enough, it cannot protect us from accidents for instance.
In his separate opinion appended to the Advisory Opinion of the ICJ, Judge Ranjeva observed that the prohibition of nuclear weapons is “a question of the responsibility of all and everyone”. 139 I take that responsibility very seriously.
It is also arguable that our arrest, imprisonment and trial constituted an unlawful interference by the State with the exercise of our right to freedom of expression which is guaranteed by Article 10(1) of the European Convention on Human Rights.
In Steele v. United Kingdom, the European Court of Human Rights held that protests which took the form of physically impeding activities of which the applicants disapproved were expressions of opinion within the meaning of Article 10(1). 140 Under Article 10(2) of the Convention, any interference with the exercise of the freedom of expression must be “necessary in a democratic society” to achieve one of the legitimate aims specified. The rule of law is one of the fundamental principles of a democratic society. 141 How then can interference be “necessary in a democratic society” if it supports, facilitates or otherwise assists illegal State activity?
(N.B. This is another reason why it must have been competent to lead evidence as to the content of customary international law as declared by the ICJ in its advisory opinion – to show how the State activity is illegal)
Furthermore, even if there was no such right in international law there is still a customary right within Scots Law to prevent crimes. The argument would be that if it is unlawful in international law to be maintaining Trident in its current form then this means it is lawful in Scots Law to use reasonable means to stop it.
iv) The question talks about ”
– international law traditionally operated at the level of States and was not seen as attaching to heads of State or national leaders. State sovereignty protected individuals. However, the horrendous violations of basic human dignity in World War II decisively changed the situation. Had Hitler or Mussolini survived they would have been tried as war criminals. So strong was the feeling regarding war crimes that even the direct orders of such heads of State afforded no protection to officials implementing them. The Nuremberg Tribunal held that the imposition of duties and liabilities upon individuals had long been recognised.
“Crimes against International Law”, observed the Tribunal, “are committed by men, not by abstract entities, and only by punishing individuals who counsel such crimes can the provisions of international law be enforced”. It went on to state “the very essence of the (Nuremberg) Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside ts competence under International Law”. 142 10(40)
The concept of individual responsibility was confirmed by the British Lord Chancellor in 1963 when he stated in Parliament that the UK looked upon the Nuremberg Principles as “generally accepted among States and have the status of customary International Law.” 143 Individual responsibility is not only well-recognised, but is a concept of growing importance in international law.
The Lord Advocate’s question carefully talks about private individuals to perhaps give the impression that whilst these Nuremberg principles of individual responsibility do apply to individual members of the armed forces or governments, they do not apply to individual private citizens. However, the trials of various industrialists heard at the British Military Court at Hamburg in 1946 clearly show the application of individual responsibility to private citizens as well.
One example, that I used in my original legal submissions at Greenock is of the case of Bruno Tesch, who was the owner of a firm that supplied the prussic acid gas, known as Zyklon B, to the Nazi concentration camps, where it was used to kill four and a half million people in Auschwitz/Birkenau alone. He and other private individuals were charged with a war crime as accessories before the fact and were eventually found guilty and put to death. The British Jurisdiction was based on “the general doctrine called Universality of Jurisdiction over War Crimes, under which every independent State has an International Law jurisdiction to punish … war criminals.” The decision of this British Military Court is a clear example of the application of the rule that the provisions of the laws and customs of war are addressed not only to combatants and to members of the state and other public authorities, but to anybody who is in a position to assist in their violation. 144 10(43)
At the risk of appearing tedious I wish to point out once again that not only does individual responsibility apply to violations of international law but also to prevention of crime.
v) There could be some debate about whether the term “property” can be used to describe objects that are used for unlawful purposes and certainly I object to the tone of the word conferring some kind of respectability and normality on objects which I consider as more accurately described as mass killing equipment. It would be better to qualify the word “property” with the phrase “which is being used for criminal purposes”.
vi) The use of the word ”
in the question is also misleading. We are not talking about objections here but our legal rights – the right to live without fear of nuclear annihilation and the right to prevent the commission of crimes. One does not ‘object’ to the threatened destruction of the planet – it is a matter of life or death. We are all in imminent danger. None of us know when nuclear weapons will be used – by design or accident – but we know that sooner or later they will be, if we do not disarm them, and meanwhile our planet is becoming more and more contaminated with long-lasting nuclear contamination as accidents and wastes proliferate.
‘Objection’ implies a matter of opinion or a political view, a state of mind, rather than action to protect the very possibility of life. We are talking here about a fundamental and deep-rooted instinct for self-preservation – the right to life itself.
It would be more accurate to put into the question that we were trying to prevent a terrible crime. After all that is what the evidence at Greenock shows. For instance the Sheriff, in her Report at page 135, stated, “I was not able to find that what these three women did was done with any criminal intent, but only in an attempt to prevent what they honestly believed to be a much greater crime’. (my emphasis). Also in answer to a direct question from the PF on 13/10/99 in cross-examination I stated very clearly “I am not running a political campaign. I am trying to prevent nuclear crimes“. (my emphasis). I presented evidence to show this and it was accepted by the Sheriff. The Sheriff reports my evidence given in cross-examination at page 32, “When asked if their aim was to influence and change government policy she replied “No”; she was trying to prevent any country in the world committing mass murder“ (my emphasis) and again at page 33 she “said that her action on 8 June was directly trying to prevent a crime.” (my emphasis). 145 10(48)
The way this question is phrased at the moment is premised on the view that our intent in doing what we did amounted in law to no more than a demonstrative protest at the U.K.’s possession of nuclear weapons and its policies and actions in relation to them. This misrepresents and wholly underestimates our declared intent. Our plea of justification – in effect upheld by the Sheriff – does not depend on our objections to the policies and weapons, but on the alleged criminality of the U.K.’s nuclear weapons posture. The question is thus inept and does not advance matters.
vii) And finally the question talks about ”
– however, the facts in the original case made it clear that we were not talking merely about possession of nuclear weapons. The context of our disarmament action was one of active deployment of 100 kiloton nuclear warheads. The warheads were and are still being deployed.
Indeed in the first open Letter to the Prime Minister written by Trident Ploughshares in March 1998 this was the third of our nine “visible and verifiable” elements needed to show “genuine progress toward disarming Britain’s nuclear capability”. We wrote that “All British nuclear warheads must be removed from their delivery systems and stored separately.” 146 But this request has never been acceded to. If it had we might have been talking about mere “possession”. 10(51)
As it is, however, there is always at least one Trident at sea armed with tens of warheads of 100 kilotons each plus the deterrence policies and plans to use them. Trident submariners are willing and able to press the nuclear buttons and regularly practice such launches on exercises. Expert evidence was led and accepted without rebuttal on the issue of current deployment and threat to use. I was cross questioned by the Procurator Fiscal on the issue of possession and what the ICJ had said about possession but in response said, “We are not talking about pure possession, but about deployment.” I made it quite clear in my answer that the ICJ Advisory Opinion was not asked to rule on the possession of nuclear weapons but on the threat or use of nuclear weapons. I did not get the opportunity to expand on my views on possession in the witness box but certainly did not concede that possession was lawful only that possession per se was not an issue when looking at the British Trident system. I still do not concede that possession of 100 kt nuclear warheads could ever be lawful because I cannot see how they could ever be used lawfully and to this extent I would argue that the Helen John Appeal came to the wrong conclusion because there was not an informed argument put on both sides. However, we do not need to go into this here.
I would like to emphasise that Sheriff Gimblett also accepted that we were not acting against “possession per se” but against the deployment of Trident. See her, in her Report at page 2, where she says, “this trial was not concerned with the possession of nuclear weapons” and on page 38 where she reports on my evidence where I said what I “was talking about was the active deployment of loaded Trident submarines” and that “What was at issue in this trial was the active deployment and the moving them that was seen as a threat”. 147 10(53)
I had also quoted in my evidence from the witness box, Paragraph 48 of the ICJ Advisory Opinion which says that possession and deployment of a weapon with the stated conditional intention to use it would constitute an illegal threat if the purpose of its use would inevitably violate the principles of necessity and proportionality. Paragraph 42 says that even a proportionate response to a threat or attack would still have to meet the requirements of humanitarian law. This would have to require discrimination. 148 10(54)
The use in the phraseology of the question of the euphemism “placing such weapons at locations within Scotland” is a continuation of this misleading idea of pure possession. It suggests that what the UK does is simply place its weapons in some hidden corner as some never to be used ultimate deterrent that will be so effective it will never be used. However, the reality is quite different and we made that clear at Greenock. These weapons are not just placed in Scotland, they are operationally based at Faslane with many hundreds of workers, tons of equipment and millions of pounds worth of resources, keeping them at a moments notice to fire off indiscriminate weapons of mass destruction. The spare nuclear warheads are stored a few miles away at Coulport and Tridents regularly visit Coulport to exchange their warheads for checking and maintenance. Tridents are regularly going up and down the Clyde on the way out to patrol. The Trident Vengeance, just last month, test-fired its missiles in the USA. They patrol the oceans and occasionally allow themselves to surface and be seen in areas of conflict. They are a continuing threat. The reality is that Trident is always on a war footing. Crises can appear very quickly and no submariner ever knows if he will be the one to start off a nuclear holocaust.
It is interesting to note, as an aside, that, in the ICJ Advisory Opinion, it was discussed that in fact when talking about nuclear weapons, possession could not be artificially separated from threat and use. The threat to use naturally inheres to the possession. Rather than go through the arguments again, I remind you of and refer you to my submission on the illegality of Trident where I dealt with this issue.
And finally, the question being so general, does not talk about the very specific circumstances at the time of our disarmament action. We gave evidence through the joint statement that we had left on ‘Maytime’ 149 from the witness box and through our expert witnesses, which was not rebutted, to the effect that June 8th was a time of special crisis and concern. We were at war in Iraq and in Kosova. As the Sheriff said in her Report at page 151A-B, it was a “time of great international unrest”. 150 10(57)
A fairer wording for Question 2 would have been :-
“Does international law and/or Scots law justify an individual in Scotland in damaging or destroying property which is being used for criminal purposes, in order to prevent those criminal actions being carried out by the United Kingdom – namely the United Kingdom’s deployment, within and without Scotland, of Trident nuclear warheads and its threat to use such warheads in accordance with HM Government’s current defence policy.”
And my answer to such a fairly formulated question would have been an unequivocal yes – both international and domestic law justify individuals in damaging and destroying the Trident system.
However, if the question remains as it stands then my answer is that this question is not appropriate in the circumstances of this case and should not be answered.
Question 3 asks “Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?” 11(2)
This question also is not appropriate in the circumstances of this case and should not be answered.
This question misses the point entirely. Belief can be a vague, undefined feeling – a personal understanding that does not necessarily have any wider significance. Belief is an imprecise term that is not the same as ‘objective knowledge’. The issue in the case was not whether we ‘believed’ Trident to be unlawful, but that we knew in FACT that it IS unlawful, and that we reasonably believed our actions would help terminate its existence. The basis of our disarmament action was, in other words, stronger than belief. It was a conviction based on fact and legal argument provided by the world’s highest judicial authority. The defence presented evidence that was not rebutted by the Crown. By using the “belief” phraseology, the Crown takes for granted that the threat or use, or even deployment, of Trident would not be illegal. To save repetition of my arguments on the criminality of Trident I refer you to my arguments in Section 4 pages 9 to 30 of this submission.
Neither I nor Greenock Court relied on ‘belief’ to sustain our defence but on well reasoned argument and evidence. This is not the same as belief. As the Sheriff said on page 3 of her report, “The trial related to their understanding of international law based … on an in-depth study of international law, customary law ad bellum and in bellum … and had formed an unchallenged, sincere, unshakeable view not just of the illegality of the use of nuclear weapons … but of the … ongoing threat of use of nuclear weapons.” 151 11(5)
This third question of law focuses solely on an accused’s belief that actions are justified in law without regard to any wider factors including the grounds of such belief and its reasonableness in the circumstances. This oversimplification renders it inept. Mere belief that actions are justified in law could not of itself found a successful plea of justification in law. But that does not mean that there is no room for the doctrine of justification in an appropriate context in Scots law. The court should decline to answer this question also.
Question 3 is linked to Question 1 in that we need to lead evidence as to the content of international law in order to demonstrate that our belief is not just a belief but is a reasonable belief – a fact even – and can be shown to be such. If it is just assumed that we have no knowledge of “legal justification of our actions”, that we just hold a belief, and the Court comes to this opinion because of its own ignorance of international law, and does not allow evidence as to the content of international law to be led, then a grave injustice is done to the accused.
Question 4 asks “Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?”
This question as it is presently phrased should be answered to the effect that, depending on the particular circumstances of the case, it may or may not be a defence to a criminal charge that the alleged offence was not criminal but an attempt to prevent or bring to an end the criminal conduct of another or others.
However, this fourth question of law raises an issue of principle – whether Scots law admits a defence to a charge that what was done was directed to preventing or ending another’s criminal actions. It can reasonably be submitted that in appropriate circumstances such a defence could and should be allowed. It would turn crucially on the particular facts and circumstances. In this sense it could hardly be categorised as a general defence. Appropriately qualified this question could be answered in the affirmative.
The question is badly written in that it makes out that if we had reasonable grounds for our action it would still be an ‘offence’. At the very least the question should have worded it as an ‘alleged offence’. We were not saying that we committed an offence and had a general defence (e.g. unsound mind) but that we did not commit an offence in the first place. In the case of malicious mischief, to have committed this offence, we would have had to have had deliberate disregard for the rights of others. But we were arguing that these rights did not exist in the first place, because the whole operation was unlawful and so no offence was committed to start off with.
Perhaps a better wording for this question would have been, ‘Is it a defence to a criminal charge to show that the conduct alleged to constitute an offence was the only means available to the accused person to prevent HM Government committing one of the most serious international crimes, or that it was undertaken in the reasonable belief that it was the only available means of preventing the commission of such a crime?’
The Sheriff, in her Report at page 135, stated, “I was not able to find that what these three women did was done with any criminal intent, but only in an attempt to prevent what they honestly believed to be a much greater crime. That honest belief in itself was based on informed opinion, given directly to them, and more particularly their actions were carried out at a time when all three considered that they and everyone else was in imminent danger from nuclear weapons.” She continues at page 136, “I considered that their defence had been well made out, remained uncontradicted and unchallenged, and that further there was no mens rea … I also had in mind that if one believes the police when giving evidence in trials involving knives and weapons one of the most common excuses given by an accused – not accepted by the court is – ‘I only had it for my protection’. Even if the knife is carried for protection that is not considered a good reason even if there was some understandable reason for the person having the knife which might go to mitigation.” 152 12(7)
It is relevant here to remind the Court once more of Sir Hartley Shawcross (the Attorney General of the British Government who led the prosecution team at Nuremberg) who said that “Murder does not cease to be murder because the victims are multiplied ten million-fold. Crimes do not cease to be criminal because they have a political motive.” 153 12(8)
At Greenock the Procurator Fiscal tried again and again to cast our actions as those of vandals or thieves. He refused to look at the bigger picture. But the bigger picture is essential.
In the 1986 case of State of Vermont v. McCann we can see another global citizen acting to prevent crime. Harold McCann tried to stop US munitions from going to Central America where such munitions were regularly used “in random air attacks on civilian populations in … El Salvador.” 154 His crime prevention was presented as being justified by the principle of necessity. The case defines this through Glanville Williams’ words, “By necessity is meant the assertion that conduct promotes some value higher than the value of literal compliance with the law” and goes on to state, “Where a person has acted meritoriously (justification) he has no need for forgiveness (excuse) … Historically, there are relatively few recorded cases in which the concept appears. This is true because in most instances such cases are not prosecuted in the first place.” 155 12(10)
I think this is a very important point and explains why, although the principle of individuals preventing crime seems to be clear, yet it is difficult to find cases to illustrate it in practice. If our action had been one of nonviolently disarming the equipment essential to the mad plans of a local drugs dealer who was threatening to blow up a whole street of innocent families where his rival lived, we would probably not have been brought to trial.
The Vermont case is also useful because it cites the Yamashita case 156 to uphold the view that “International Law may, under appropriate circumstances, create ‘an affirmative duty to take such measures as (are) within (an individual’s) power and appropriate in the circumstances’ to prevent criminal violations of international law.” 157 The case then goes on to explain the common-law privelege which allows one to prevent the commission of a crime by stating that, “An individual other than a government official is justified in using reasonable force to prevent or to terminate what he reasonably believes to be the commission of a crime.” 158 12(12)
I would like to remind you of my testimony concerning the frequent complaints about the illegality and criminality of Trident that I formally made to the police, courts, Attorney General, Lord Advocate etc. If you refer to the Sheriff’s Report on page 22 at the last paragraph she refers to these, “She outlined all that she had done by way of peaceful legal means to bring an end to nuclear weapons. She explained how she had tried to get the police to take up her cause of what she perceived was the illegality of nuclear weapons and how she herself had tried to raise action through the courts in England but on each occasion had been denied access to that remedy. She had been given different excuses by different magistrates being either that it was not in the public interest or that it was frivolous or vexatious, or the Crown would take over the proceedings she had already raised but then drop them on the basis that it was not worth proceeding with them. She had tried a direct approach to the Attorney General but was told it was the job of the police to make enquiries about her claim. So she went to the Norfolk police and wrote to the Chief Constable …” etc etc. 159 As a responsible citizen reporting a major crime that if not stopped could cause millions of deaths, what am I expected to do if I cannot get relief from the Executive, Legislature or Courts? If nothing comes out of this LAR that finally rids us of the threat from Trident I will have to make further disarmament attempts.
The lack of adequate redress from the authorities is not only negligent and culpable in itself but is clearly in breach of our international rights to have our grievances properly dealt with. There is a right of effective remedy in Article 8 of the Universal Declaration of Human Rights which states that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law” 160 where the undertakings of all State Parties (which includes the UK) are set down as being “(a) To ensure that any person whose rights or freedoms as herein are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.” 161 12(14)
Our appeals to the authorities have not led to an effective remedy. Trident and the UK Government nuclear deterrence policies have still not been examined directly and impartially and we still all live in daily terror of a catastrophic accident or purposeful use of the UK nuclear weapons that are still based here in Scotland. This is inexcusable. It is clearly unsatisfactory that ordinary women like Ulla, Ellen and myself should have to try to disarm these criminal weapons of mass destruction ourselves and yet we have no alternative at present. I am hoping that this Court at least will tackle the root issue and enable an effective remedy to be found to our distress and to secure for us relief from the horrifying threat to our ultimate right to life.
The legal systems of most civilised countries allow and encourage citizens to report and prevent crime, particularly serious offences. Most people understand that any legal system that does not act upon reports of major criminal activity or bring criminals to justice is undermining the very basis of legal conflict resolution and encouraging civil conflict. This basic civic responsibility has been deliberately obstructed by UK courts which either declare themselves incompetent to enforce international law or listen wearily to such argument before ruling it irrelevant. Such evasion of the law is a wilful violation of the legal principles held to be binding at Nuremberg, and of the many international commitments made by British governments.
As I have previously pointed out, the International Military Tribunal at Nuremberg observed that, “the very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.” 162 Under the Nuremberg principle of individual responsibility, regardless of a superior’s orders or national law, all persons, military and civilian, whatever their rank or position, are obligated to terminate their commission of, or complicity with, acts connected to the use of a nuclear weapon in violation of humanitarian and other law proscribing international crimes. This is only a statement of the principle’s minimal consequences in the context of nuclear weapons. In the present context of the threat of global catastrophe posed by the Trident system, the principle of individual responsibility supports reasonable, nonviolent acts by citizens and taxpayers of nuclear-armed states, not personally otherwise involved in deployment or use of nuclear weapons, directly to confront and oppose the potential commission of atrocities by use of those weapons. 163 12(17)
This extension of the Nuremberg principle of individual responsibility is consistent with human rights law. Relevant provisions are found in the Universal Declaration of Human Rights. The Universal Declaration is widely accepted as an authoritative interpretation of the human rights clauses of the United Nations Charter, a treaty to which the UK is a party, and additionally evidences customary international law.
Preambular paragraph three states: “[I]t is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. 164 12(19)
Preambular paragraph eight states: “[E]very individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the people of territories under their jurisdiction.” 165 12(20)
Article 28 states: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” 166 12(21)
Together with other human rights as well as the UN Charter, Article 28 of the Universal Declaration articulates a right to peace. Article 3 sets forth the right to life. The International Court of Justice at paragraph 25 held that the right to life, recognized in Article 6(1) of the International Covenant on Civil and Political Rights, a treaty to which the UK is a party, must be respected in time of war, and that in that context humanitarian and other law governing the conduct of warfare determines whether deprivation of the right to life is arbitrary in violation of Article 6(1). 167 12(22)
The above-mentioned provisions of the Universal Declaration and International Covenant on Civil and Political Rights support a right of nonviolent resistance to threatened violations of the right to life and the right to peace. Harm to civilian populations is inconsistent with the principle that “human rights should be protected by the rule of law” 168 and the right to life. 169 12(23)
Nonviolent prevention of threatened harm vindicates the rule of law while avoiding “recourse, as a last resort, to rebellion against tyranny and oppression.” 170 Nonviolent crime prevention also fulfils the responsibility to strive for the “recognition and observance” of human rights 171 including the right to life and promotes the attainment of a “social and international order in which rights and freedoms set forth in this declaration can be fully realized.” 172 12(24)
In this fourth question put by the Lord Advocate, it may need emphasising once again that “the other person” whose criminal activities we are trying to prevent is her Majesty’s Government. In this regard I would like to refer you to the compelling dissent by Judge Brandeis in Olmstead v. United States where he says, “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, the existence of the government will be imperilled if it fails to observe the laws scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means … would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.” 173 12(25)
Finally, in respect of this question it is also important to note here that if it is a defence then in order to run this defence it is essential that evidence is allowed to show that there was indeed an offence committed by another person. In other words, it gives added weight to the answer to Question 1, that in the context of the Greenock case, it was appropriate and competent that experts were allowed to testify on the factual and objective basis necessary to prove the illegality and criminality of Trident.
My answer to this last question is that depending on the particular circumstances of the case, it may or may not be a defence to a criminal charge that the alleged offence was not criminal but an attempt to prevent or bring to an end the criminal conduct of another or others and that in the particular circumstances of the Greenock acquittal it was certainly a defence.
From any objective global perspective, we three women were acting morally and according to natural justice. From an international legal perspective, our arguments (that we had legal justification for trying to prevent the preparations for the use of nuclear weapons that could not be used in accordance with the intransgressible principles of international law and which would lead to indiscriminate attack and mass destruction) were compelling. Our acquittal showed that at least one Judge ruled our act as also being lawful.
However, we acted within the judicial boundaries of one of the five major nuclear powers – the UK – at a time when the Government’s view was that their nuclear weapons of mass destruction (the Trident system) were necessary for deterrence and were lawful under international law. Such an acquittal could therefore not go unchallenged and the Lord Advocate of the time – Lord Hardie – bowed to political rather than legal pressure and sought a Lord Advocate’s Reference. I say this advisedly in the light of the way the petition is framed and of the questions that have been brought to the High Court.
A Lord Advocate’s Reference is meant to be a procedure whereby points of law that have arisen in a case in relation to an indictable charge can be examined and clarified by the High Court. Serious mistakes in law can thus be rectified and potential problems and conflicts solved.
In my opinion, the major point of law – or legal question – that arose from the Greenock Trial can not be seen within the Lord Advocate’s Petition. The missing question is quite simply ‘Is Trident criminal, and if it is what can be done to remove it from Scotland and ensure changes are made to the Government Defence Policy and its implementation to bring it within the law?” 13(5)
In a letter from the present Lord Advocate – the Right Honourable Colin Boyd – in response to a Scottish MSP – Dennis Canavan – who wrote in support of including the question of whether Trident is unlawful in the present proceedings, Colin Boyd states that “it is not appropriate for the Crown to invite the court to answer the question”. 174 This is a classic example of government evasion and abuse of power. The Government is trying to have its cake and to eat it too. It seeks to obtain the Court’s views on questions that do not fairly arise from the Greenock acquittal, while at the same time avoiding the issue that goes to the very heart of the matter. Of course it is appropriate to invite the Court to answer the underlying question. As a matter of grave, urgent, public concern, the Court should initiate an immediate full inquiry into the whole problem or indicate an effective remedy open to the respondents.
It may not be appropriate for the court to answer this question now but at the very least, in the context of the Greenock acquittal, and the context of a growing number of global citizens who are continuing to try to prevent the ongoing criminal activities of the whole Trident system, it is surely appropriate for you, the Court, to clarify whether in fact Trident is unlawful and criminal.
There is another legal issue that has arisen in this trial and which the High Court have not been invited to answer and that is to what extent domestic law can over-ride basic principles of customary humanitarian law. In other words if the domestic law of a country does not allow the prevention of an international crime by its citizens, for whatever narrow technical reasons, does this actually invalidate the crime prevention. I think not. At Nuremberg we saw that in fact narrow domestic German Law did not over-ride international law. Whatever the state of German law if the actions within Germany broke international law then that is what they were tried for and died for and German law could only act in mitigation, if at all.
A much more recent German High Court case reported in the leading German law journal New Juristic Weekly can shed some light on this issue. It concerned two soldiers of the former East-German Volksarmee who did their service at the Berlin wall protecting the East-German border against their own people. After the fall of the Iron Curtain in 1993 they were charged with homicide for the shooting of a refugee in 1984 who had tried to climb over the wall in East Berlin. They were found guilty at the first instance and it was confirmed at the appeal even though East German law permitted the use of firearms to prevent such a crime and even though they had been ordered by superior officers to prevent such ‘crimes’. The High Court referred to the International Covenant on Civil and Political Rights and “found that the defendants must have seen and respected the command of humanity”. It is interesting to note that the High Court referred to the Nuremberg Trials and said “The judge has to examine whether the state has crossed the limits set by the basic values and convictions of all civilised nations.” 175 13(9)
In a letter from the present Lord Advocate, the Right Honourable Colin Boyd – in response to a Scottish MSP, Dennis Canavan – the present Lord Advocate stated that the issues which arise in these Reference Proceedings are “primarily related to the relationship between international law and the criminal law of Scotland”. 176 He also stated that “a wide ranging enquiry into the legality of Trident is not one which can be accommodated in this procedure”. If this is so, which I dispute, then nevertheless I submit that enough evidence came to light in the original Greenock trial which has been reported and commented upon in these reference Proceedings to indict the people responsible for running and maintaining the UK Trident system and this Court should order the immediate and complete disarmament of Trident in the interests of the whole of humanity and in accordance with international law. – otherwise there will continue to be conflict between the very large percentage of people in Scotland, and the vast majority of other countries, that consider the Trident system to be unethical and criminal and the people running and supporting the Trident bases.
It is also inherently unfair that such a life and death issue be left unresolved – and especially unfair to the military and other civilian workers within and outside the nuclear weapons bases who are at present engaged in the deployment of Trident and also in protecting the bases – and I speak here of the submariners and Commanders of the Trident submarines (some of whom are known to be deeply uncomfortable and confused about their role) and of the MOD and Strathclyde Police in particular – all of whom could face criminal proceedings in a future War Crimes Tribunal for their part in enabling the complex system of mass destruction to continue to operate through its outstretched tentacles that cover many of the lochs and hills of Scotland.
I hope that the High Court and Scots Law rise to the challenge.
A legal system can be supported by people if, and only if, it remains firmly grounded on natural justice and morality.
Murder has always been recognised as a wrong and as being unlawful and criminal. Mass murder is probably one of the most heinous wrongs known to mankind.
Crime prevention is natural and as long as it is done nonviolently, safely and accountably forms a recognised right in the vast majority of cultures, societies and nations, many of which have incorporated it directly within their judicial systems.
Although the questions put to the High Court seem to be purely technical, nevertheless they challenge the right of ordinary citizens to try to put very great wrongs right. For this right to be undermined, spells disaster for our society and will lead to a protracted conflict of interests between the State and ordinary people. People will no longer be able to remain responsible caring human beings as well as Scots-law-abiding citizens. They will have to choose between the two.
It is clear that responsible, caring global citizens will choose life and people’s disarmament over a legal system devoid of morality, humanity and natural justice. The nuclear crime prevention will continue whatever the outcome of the LAR but if the Court is wise and courageous it will also grapple with the underlying problems arising out of the Greenock Trial – that of the vital question of the criminality of Trident and how to remove it from Scotland.
I would like to leave you with one last quote and urge the Court to read the whole of the Dissenting Opinion of judge Weeramantry from whom it comes. On page 29 of his opinion he says,“One wonders whether in the light of common sense, it can ever be doubted that to exterminate vast numbers of the enemy population, to poison their atmosphere, to induce in them cancers, keloids and leukemias, to cause congenital defects and mental retardation in large numbers of unborn children, to devastate their territory and render their food supply unfit for human consumption – whether such acts as these can conceivably be compatible with ‘elementary considerations of humanity’. Unless one can in all conscience answer such questions in the affirmative, the argument is at an end as to whether nuclear weapons violate humanitarian law, and therefore violate international law”. 177 Thank-you for your attention.
Second Submission to the Court
“Where the mind is without fear and the head is held high
Where knowledge is free
Where the world has not been broken up into fragments by narrow domestic walls
Where words come out from the depth of truth
Where tireless striving stretches its arms towards perfection
Where the clear stream of reason has not lost its way into the dreary desert sand of dread habit
Where the mind is led forward into ever widening thought and action
Into that heaven of freedom, let my country awake”
It is difficult to know what I can add to the first submission I gave the Court and which I still stand by. The fact that I do not repeat the points made in it merely reflects my opinion that if anything I submitted then is of value and is convincing then it does not need to be repeated. I therefore trust that you will review my previous written submission, and rule upon what is useful and valid, in the spirit of the “public conscience” of the Martens Clause 178 .
I will therefore only come back on a few points that it may be useful to clarify, draw to your attention a few more issues that have perhaps not been given enough emphasis and submit various motions to the Court for its consideration.
Before I continue I would like to make some observations on the value and shortcomings of normal municipal law analogies. I used such analogies in my previous submission in an attempt to help explain the necessity for disarming Trident by using less contentious examples of crime prevention. I fear that we have all been caught up in this to some extent perhaps because the law seems to be better structured to deal with people breaking speed limits to get their passengers to hospital rather than the threat of nuclear weapons. As Einstein said in 1946 “The unleashed power of the atom has changed everything save our modes of thinking, and we thus drift towards unparalleled catastrophe” 179 .
I would like to recognise now that analogies in arguments are inappropriate where the difference in scale between the two cases is so great as to constitute a difference of kind rather than of degree. The difference between a domestic street crime and an international crime of mass murder with dire effects on succeeding generations is so great that the comparison is bizarre. This was pointed out to me by one of the people listening to these Reference Proceedings from the public gallery. It may be an understandable way of avoiding thinking about the barely thinkable but not only must we be aware that the use of analogies can be misleading, but we must also properly and directly engage our minds, imaginations and feelings in the reality of the horror contained in the nuclear Trident submarines that are shamefully using Scotland as a base.
That said, I would like to revisit some of the domestic law analogies because, for all their limitations, I believe they can also help us to get at what is really going on, who is doing what to whom. Yesterday, the Crown submitted that ‘the use of nuclear weapons are merely one example of the use of force’. In my view, nothing could be more misleading. This is because nuclear weapons have three main effects – Blast effects, Fire effects and Poison/radioactivity effects. I leave aside the electro-magnetic pulse effects which also occur indiscriminately at great continent-wide distances.
The prevailing military mindset is that nuclear weapons are means of delivering forceful blast effects, such as can be encapsulated in notions of strategic or tactical ‘strikes’, which derive from bombing Germany to ‘hit back’ at the Kaiser or Hitler, and which are rationalised by pro-nuclear politicians through the use of homely playground analogies such as ‘hitting the bully back on the nose’. In all these cases the key here is to realise that we are dealing with different versions of a model involving only two actors. Let us call it the two-actor model.
Come World War Two and it was discovered that many conventional shells and bombs used together were capable of creating a synergy effect or fire-storm which, when used against cities, necessarily engulfed many hundreds or thousands of non-combatant residents in Rotterdam, London, Hamburg and Tokyo. Although such actions were always justified morally and legally as Re-taliation, or Re-prisal, or hitting ‘back’, their real consequences went beyond this model. Hence, the examples of Hamburg etc were not acclaimed as good and lawful acts, which then might have established a new (low) standard of customary State practice. Both sides claimed that their bombing was discriminating and focussed, and both continued to reinforce the norms of discrimination and non-combatant immunity through the denunciations they levelled at the ‘deliberate atrocities’ of the other sides area bombing of cities.
From this point in history, looking back at these events, it is quite clear that both sides’ area bombing, far from striking-back at the aggressor, actually struck at the heart of civil society, at the innocent bystanders, at the ‘protected’ people, the grandmothers, children, the sick and disabled, the non-combatants of London and Dresden. Yet, even so, with conventional explosives it remained the case that conventional bombing could be used in ways which could be focussed in time and place in the just prosecution of a just defensive war. One thinks, for example, of the use of air power to destroy railway lines and bridges in North-West France in preparation for the Normandy invasion of 1944. With conventional explosives the two-party model could still pertain.
However, with the use of nuclear weapons against Hiroshima and Nagasaki in 1945 we are immediately in the presence of a new paradigm. Nuclear devices no longer fit the classical paradigm of a weapon: a means of extending force vis a vis an enemy. This old model of force projection had already been stretched beyond breaking point in the course of area bombing of military-industrial complexes in city centres, as JM Spaight admitted in ‘Air Power and War Rights’ (London 1946). During the war and for many years leading up to it Spaight had been the Air Ministry’s top legal adviser and even doubled as a public champion of ‘target-area bombing’ in 1942/43. However by 1946 Spaight (now just retired) had already concluded that the inherently poisonous nature of nuclear weapons put them in a new category which could never be used ‘first’ in conformity with international law.
I say ‘first’ in inverted commas because there is no way that the poison they contain can be dispersed in controlled and focussed ways. Therefore these so called ‘weapons’ – unlike conventional bombs – necessarily involve non-combatant third parties. And I put ‘weapons’ in inverted commas because from the point of view of the majority of all the people directly involved (generals and soldiers and all the classes of present and future victim) these devices affect us as ‘poison-scattering devices’ even more so than as fire or blast machines.
Nuclear Weapons aren’t!
They break out of the classical two-actor model of weapons, retaliation, strike, etc. They necessarily involve one or a series of classes of third party – civilians, emergency service workers, neutral nations, the environment, future generations. No truly rational person can imagine that they can ‘defend themselves’ or ‘retaliate’ against children yet unborn unto the thousandth generation! – to refer only to the 24,000 year half-life of plutonium and its irreversible and cumulative vandalism of the gene pool of the ‘succeeding generations’ in whose name ‘we the peoples of the world’ convened in 1945 to secure their future against ‘the scourge of war’.
So may I beseech the bench not to over-identify with conventional, outdated and blinkered two-actor views of the social relations involved between the statesmen and generals of ‘our side’ and the statesmen and generals of ‘the enemy side’. May I beg you with all my heart and mind to identify with another ‘our side’ – that of the majority of those affected by nuclear ‘weapons’. This non-combatant community of peaceful life on earth is at best put in fear by inherently indiscriminate threats which lower the moral watertable in international relations; and at worst will have fire, poison and EMP effects visited on us. In all events they feel threatened.
The fact that our statesmen and generals are personally humane people and have no sadistic desire to bring such awful consequences about does not mean that they can or should be excused the inevitable and necessary consequences of their plans and preparations.
In the light of all this, let us revisit the analogy of using reasonable force to stop a neighbourhood thug. The appropriate analogy is not hitting the bully back on the nose. Nor, I submit, is it taking practical preventative measures to enable one to direct lawful focussed and credible threats (implicit or otherwise) against the thug or any other bully who might also be tempted to invade our home. Rather the UKs posture can more accurately be likened to standing prepared at any minute to burn down the bully’s home, thus murdering the bully’s wife, child, aged parents, in such a way as also to endanger neighbouring houses and to spread poison throughout the entire neighbourhood.
Let me now proceed to the actual crime under discussion and leave analogies behind. These Reference Proceedings are addressing “the most serious crimes of concern to the international community as a whole” 180 – the unlawful threat of destruction of all life on our planet.
Every time I say this I fear that I am overstating the case and I then have to re-appraise it all again. Have I got it wrong? Should I perhaps return to my gardening and pottery and leave all this to others, more intelligent and expert than myself, the ones in control, who assure me that I shouldn’t worry because these nuclear weapons will never be used, a nuclear holocaust could never happen. Although re-appraisal is always necessary, nevertheless in this case the doubt and the fear probably stem from processes known as ‘serious displacement’, ‘psychological numbing’ 181 and ‘denial’ – whereby we ignore or downplay facts that we do not know how to deal with adequately or engage in other activities. We can all suffer from such denial. However, I only have to delve into the facts again to be assaulted once more by the imminence of a possible nuclear holocaust and “my normal human instincts cry out for action and make a counsel of patience unreasonable”. 182 1(17)
Which leads me to the imminent danger that we are all in, at this very moment. But firstly, let me very briefly deal with the “spanner in the works” as Mr. Moynihan put it, in his first submission, or what we have been referring to as:-
2. The hypothetical extreme case. 2(1)
I think we have to ask just one question – is it believable or likely? The whole discussion depends on the concurrence of two incompatible events i.e. a State’s very survival being at stake and its response of exploding a low-yield nuclear weapon on a group of soldiers in the middle of a desert, and then if this doesn’t work not using any other nuclear weapons. This is legalistic nonsense. It is quite obvious to any honest person that Trident is deployed to threaten mass destruction not to blow up a ship in the middle of the ocean or a tank unit in the middle of a desert – our conventional weapons can do that perfectly adequately. This lie was at the heart of the problems within the ICJ Advisory Opinion. One does not need a 100 kiloton nuclear weapon to blow up a tank unit or a ship. Please don’t allow such a ridiculous and misleading proposition to put a ‘spanner in the works’ of this Court’s rulings. We are here dealing with the realities of the UK Trident system as presently deployed and so are in a much better position than the ICJ which was asked to rule on a general question which had to take account of possible future inventions. This Court therefore can be more specific and leave no loopholes for the unscrupulous to wriggle through.
Now, to proceed to
3. Imminent, ongoing, ever-present, danger. 3(1)
There has been some discussion in this Court of whether there is any imminent danger at all in the deployment of Trident and I would like to address this issue directly. In the process I invite you to note that more light is shed on the unlawfulness of deterrence itself by virtue of the plans, operations and deadly risks it entails.
I would like to bring to your attention a document that you may not be aware of and which I gave in as evidence from the witness box at Greenock where it was labelled H-5. It is a speech given by General Lee Butler 183 . Professor Paul Rogers at page 40 D and the Sheriff in her Report at page 22 also mention General Lee Butler. It is important because it helps provide an objective, rational explanation of why the deployment of Trident along with the expressed conditional intent to use it is an ever-present, imminent source of danger that we should all be aware of and continually strive to eliminate.
Although it is about the nuclear weapons of the United States it applies to the UK too. In this regard please remember that the un-rebutted facts at Greenock showed that:-
US nuclear weapons are still stationed at Lakenheath airbase (which is very close to where I live in Norfolk);
UK nuclear forces are closely allied to those of the United States with whom we work closely in NATO and with whom we practice joint nuclear weapons exercises which involve scenarios of exploding thousands of NATO nuclear weapons;
the targets for the UK Trident system are integrated into the overall targeting plan of the US;
Prime Minister Blair has said he would be willing to press the nuclear button 184 ;
Britain’s refusal to take its nuclear weapons off alert is to continue to enable Trident to be used at any time – that is what the term “credible deterrence” means;
Deployment of Trident is a way of keeping nuclear weapons in a state of readiness for use in a war – as Commander Tall said “There was no doubt that when we went to sea we went to war”. 185 By the way this quote from Commander Tall (which we used at Greenock and which is in our Handbook that was left on Maytime) should be read in the knowledge that a military unit on a short period of notice to fire is a status which would normally only be assumed in wartime. While other units may be on a period of notice to deploy, normally weeks or months, they are not on a specific notice to fire. This term is not used with regard to any of the other British military forces listed in the Strategic Defence Review. This fact alone is enough to rebut Mr. Menzie’s suggestion that Trident deployment is like an RAF practice flight over Scotland.
Bearing all of this in mind I would like you to read the whole of General Lee Butler’s speech but I will just highlight the most significant passages for you now. It is in my LAR Part 2 Bundle, Reference 93. You will note that I have run the reference numbers on from my first submission. General Lee Butler made this speech in Ottawa in 1999. He retired from the United States Airforce in 1994 after 33 years of military service where he had served at the very highest level. There is a resume of his various offices at the back of the speech. He was the Commander in Chief of the United States Strategic Command and had the responsibility for all US Air Force and US Navy strategic nuclear forces – one cannot really go much higher.
On the first page, second paragraph, he states “nuclear weapons are the enemy of humanity. Indeed, they’re not weapons at all. They’re some species of biological time bombs whose effects transcend time and space, poisoning the earth and its inhabitants for generations to come”. I shall return to this point later as it is crucial. He goes on to say in the 5th paragraph, “It required 30 years simply to reach the point in my career where I had the responsibilities and most importantly, the access to information and the exposure to activities and operations that profoundly deepened my grasp of what this business of nuclear capability is all about.” 3(6)
He continues on the second page ‘Let me …. give you some sense of what it means to be the Commander of Strategic Nuclear Forces, the land and sea-based missiles and aircraft that would deliver nuclear warheads over great distances. First, I had the responsibility for the day-to-day operation, discipline, training, of tens of thousands of crew members, the systems that they operated and the warheads those systems were designed to deliver. Some ten thousand strategic nuclear warheads. I came to appreciate in a way that I had never thought, even when I commanded individual units like B-52 bombers, the enormity of the day-to-day risks that comes from multiple manipulations, maintenance and operational movement of those weapons. I read deeply into the history of the incidents and the accidents of the nuclear age as they had been recorded in the United States. I am only beginning to understand the history in the former Soviet Union, and it is more chilling than anything you can imagine. Much of that is not publicly known, although it is now publicly available.
Missiles that blew up in their silos and ejected their nuclear warheads outside of the confines of the silo. B52 aircraft that collided with tankers and scattered nuclear weapons across the coast and into the offshore seas of Spain. A B52 bomber with nuclear weapons aboard that crashed in North Carolina, and on investigation it was discovered that on one of those weapons, 6 of the 7 safety devices that prevent a nuclear explosion had failed as a result of the crash. There are dozens of such incidents. Nuclear missile-laden submarines that experienced catastrophic accidents and now lie at the bottom of the ocean.’ (my emphasis).
He continues in the next paragraph to explain how imminent the threat was when he says that as the “principal nuclear advisor to the President of the United States” he had to be prepared
“on a moment’s notice, day or night, 7 days a week, 365 days a year to be within three rings” of his telephone, ready to recommend to the President what to do in the event of a nuclear attack. In explaining how the President “had 12 minutes” to make his mind up he also shows how the military accept the reality of escalation from the use of one to many nuclear weapons. He says in paragraph 4 on page 2, “In the 36 months that I was a principal nuclear advisor to the President, I participated every month in an exercise known as a missile threat conference … a scenario which encompassed one, then several, dozens, then hundreds and finally thousands of inbound thermonuclear warheads to the United States.” (my emphasis).
It is interesting to note that he is as appalled as any of us that the
“fate of mankind in its entirety”
(my emphasis) hangs on a decision that has to be made in 12 minutes. This is not a peace protester saying this but a top Military General who knew from direct experience.
He continues, “sad to say, the poised practitioners of the nuclear art never understood the holistic consequences of such an attack, nor do they today. I never appreciated that until I came to grips with my third responsibility, which was for the nuclear war plan of the United States”. In January 1991 he “finally for the first time in 30 years was allowed full access to the war plan” and he says, “I was shocked to see that in fact it was defined by 12,500 targets in the former Warsaw Pact to be attacked by some 10,000 nuclear weapons, virtually simultaneously in the worst of circumstances, which is what we always assumed. I made it my business to examine in some detail every single one of those targets. I doubt that that had ever been done by anyone, because the war plan was divided up into sections and each section was the responsibility of some different group of people. My staff was aghast when I told them I intended to look at every single target individually. My rationale was very simple. If there had been only one target, surely I would have to know every conceivable detail about it, why it was selected, what kind of weapon would strike it, what the consequences would be. My point was simply this. Why should I feel in any way less responsible simply because there was a large number of targets. I wanted to look at every one. At the end of that exercise I finally came to understand the true meaning of MAD, Mutually Assured Destruction. With the possible exception of the Soviet nuclear war plan, this was the single most absurd and irresponsible document I had ever reviewed in my life.” 3(10)
He says on page 3 that “we escaped the Cold War without a nuclear holocaust by some combination of skill, luck, and divine intervention, and I suspect the latter in greatest proportion” and then continues to explain how he recognised that he “had the responsibility to be at the forefront of the effort to begin to close the nuclear age” and how he persuaded the President to cancel millions of dollars worth of nuclear weapons programmes, accelerated the START 1 Accords, recommended that the bombers be taken off alert, put 24 bases on the closure list and “cut the number of targets in the nuclear war plan by 75%”. He then went into retirement with “a sense of profound relief and gratitude”.
That should have been the end of the story but unfortunately he goes on to tell of his “growing dismay, alarm and finally horror that in a relatively brief period of time, this extraordinary momentum, this unprecedented opportunity began to slow, that a process I call the creeping re-rationalisation of nuclear weapons began, that the bureaucracy began to work its way … and now today we find ourselves in the almost unbelievable circumstance in which United States policy is still very much that of 1984, as introduced by Ronald Reagan. That our forces with their hair-trigger postures are effectively the same as they have been since the height of the Cold War … NATO has expanded up to … (Russia’s) … borders, and Moscow has been put on notice that the United States is presumably prepared to abrogate the ABM Treaty in the interest of deploying limited national ballistic missile defense”. (my emphasis).
This brings us to the present moment when the UK is conspiring with the US in the support and development of the National Ballistic Missile Defense System and allowing Military facilities in the UK to be developed for this purpose. Not only is this leading to the weaponisation of space and a new nuclear arms race (this time it will probably be mainly with China) but once again the UK is backing the rule of power rather than the rule of law – undermining the international legal system through supporting the US in its planned breaches to the Anti-Ballistic Missile Treaty and the Outer Space Treaty.
To sum up – I have tried to give you a flavour of the evidence we gave at Greenock – to show the immediacy of the danger we are all in by design or accident. General Lee Butler’s key phrases were “the enormity of the day to day risks”, “on a moment’s notice”, “the fate of mankind in its entirety” and “hair-trigger postures” – all phrases that speak to the imminence and danger entailed in the deployment of nuclear weapons.
4. No true choice and the Necessity Defence. 4(1)
With this kind of information (and these Reference proceedings have heard only a miniscule fraction of the whole) I think the Court can appreciate more fully why Sheriff Gimblett was able to rule, without fear or favour as she put it, that we were justified in our attempts to disarm the Trident system. You may also be more able to understand why I felt, and continue to feel, that I have no choice, that I am impelled to do all I can to prevent a nuclear holocaust, that I feel the necessity to act with others to try to disable and disarm the Trident nuclear weapon system based here in Scotland, and why Trident Ploughshares will continue to encourage People’s Disarmament, or Citizen Intervention, until an official body takes over this urgent and necessary task. I consider my work here in this Court as part of the Peoples’ Disarmament attempts, as part of our work to reclaim the law for the protection of the innocent and helpless, for justice, fairness, equality, and the right to life. If this Court does its duty in the light of the underlying principles of law and justice and it rules appropriately then the Executive will have no choice but to bow under the pressure of the law and disarm Trident of its nuclear weapons.
The Court should be aware of the trap of too narrowly defining ‘immediacy’ – the timeframe for realising and acting on a threat and for those actions to yield efficacious results. The nature of the evil that my colleagues and I sought, and continue to seek, to prevent is on a unique scale that is totally different from say, creating a firebreak on someone’s property to prevent a greater conflagration or breaking and entering to prevent a murder. The temporal element is quite different too. In ordinary necessity cases the immediacy of the greater evil is easy to discern and is a decisive element of justification. But, in the complex systems of mass destruction that have been set up for nuclear deterrence, the point in time at which the emergency is obviously apparent depends on the amount of information one has about the system, and the amount of information that a particular character may need to have, before they are convinced of the imminent danger. It takes some people much longer to realise the danger. I am reminded here of the story of the people enjoying their row in a boat on a river blissfully unaware of a massive waterfall ahead which is quite obvious from the shore, where there are people shouting and waving at them to row the other way. By the time they apprehend their danger it is too late to prevent the boat going over the edge and dashing them to death on the rocks. It took General Lee Butler 33 years to realise how perilous and tenuous our survival is. How long will it take all those present in this Court today? I submit that it would be against all logic and rationality for the Court to be persuaded that citizens have a right to destroy property in ordinary cases of necessity but have no right to protect themselves in this way against the greatest evil of all, the “ultimate evil” as Judge Bedjaoui called it.
5. The Right to Intervene and the Nuremberg Extension. 5(1)
One example of the ‘extension’ of the Nuremberg Principles to allow intervention to prevent international crime is the story of Paul Grueninger. He was the Chief of Police of St. Gallen, Switzerland, who allowed refugees from Nazi persecution to enter the canton of St. Gallen in the years 1938 and 1939 by disregarding federal directives and violating laws in order to protect them. He intervened to uphold human rights and dignity and to prevent crimes against humanity from taking place. He was dismissed from office and convicted by the district court of St. Gallen of violating the duties of his office and of falsifying legal documents. He was ostracised and lived in poverty the rest of his life. However, in 1995 Paul Grueninger was rehabilitated judicially when his trial was re-opened at the district court and he was acquitted and his descendants were given compensation for the losses in salaries and pension claims caused by his dismissal without notice. I have only just heard of this remarkable man and am awaiting the details of the court documents but have included in the Reference Bundle, at number 4, the information that I have to date. 186 5(2)
Paul Greuninger’s exemplary acts of humanity and international crime prevention are in marked contrast to the lawyers and judges who were tried at Nuremberg in the case of U.S. v. Josef Altstoetter et al also known as The Justice Case 187 . They were found to be complicit in war crimes and crimes against humanity. At page 1227 it explains, “Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Jews and Poles in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws”. 5(3)
For instance at page 1233, Schlegelberger who had been in charge of the Reich’s Ministry of Justice was found “guilty of participation in the racial persecution of Poles and Jews; he was also guilty of violation of the laws and customs of war by establishing that legislation in the occupied territories of the East. The extension of this type of law into occupied territories was in direct violation of the limitations imposed by the Hague Convention”. At page 1235 the activities of the Ministry of Justice were described as a “program of racial extermination under the guise of law”. The Court added, “We are under no misapprehension. Schlegelberger is a tragic character. He loved the life of an intellect, the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security.” 5(4)
The defendant Rothenberger was at relevant times the president of the Hanseatic Court of Appeals. As such, he participated in the perversion of the legal system. As the Court at Nuremberg said at page 1241, “Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and not withstanding his many protestations to the contrary he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the party minions, and the police. He participated in the corruption and perversion of the judicial system.” 5(5)
German law was no justification, no defence. At page 1250 it states, “This Tribunal is not concerned with the legal incontestability under German law” of the cases against the Jews, Poles or other persecuted minorities. It also stated at page 1251, that “the defendants are not charged with specific overt acts against named victims. They are charged with criminal participation in government-organised atrocities and persecutions unmatched in the annals of history”. The Tribunal was acutely aware that the accused jurists were enforcing domestic law that under German legal doctrine took precedence within Germany over international law. The Tribunal thus took special care to emphasise that the jurists nonetheless could be held responsible – the implication being that German legal theory was mistaken in endorsing the violation of international law if required by domestic law. At page 1220 the Tribunal states, “The conclusion to be drawn from the evidence presented by the defendants themselves is clear. In German legal theory Hitler’s law was a shield to those who acted under it, but before a tribunal authorised to enforce international law, Hitler’s decrees were a protection neither to the Fuerhrer himself nor to his subordinates, if in violation of the community of nations.” 5(6)
These quotes all show the “universality and superiority of international law” (see page 1203) over local State law. At page 1205 this is explained, “It is therefore clear that the intent of the statute on crimes against humanity is to punish for persecutions and the like, whether in accord with or in violation of the domestic laws of the country where perpetrated, to wit: Germany. The intent was to provide that compliance with German law should be no defence.” 5(7)
I continue to submit that just as international law provides for the prosecution of international criminals it also logically has to provide for the intervention by individuals to prevent those crimes from taking place in the first instance. The rights of a state to intervene are explicitly recognised at page 1211 where you will see a quote from “Sir Hartley Shawcross, the British Chief Prosecutor at the trial of Goering et al : ‘The rights of humanitarian intervention on behalf of the rights of man trampled upon by a state in a manner shocking the sense of mankind has long been considered to form part of the [recognised] law of nations. Here, too, the Charter merely develops a preexisting principle’.” (my emphasis). If no state intervenes then I submit there is a right of individual nonviolent intervention to prevent war crimes and crimes against humanity from taking place. I refer you to my first submission to the Court, last month, for my more detailed arguments on the rights of individual intervention – specifically sections 10(5) to 10(34); 10(37) to 10(47); 12(7) to 12(24); and 13(7) to 13(8).
I have been told that in France it is against the law not to respond when someone shouts ‘au secours’. We three women were responding to a global cry of help from Hiroshima down to the present. A cry of help raised by millions of awake, caring, people whose moral vision remains intact and can distinguish between 1) a lawful threat of focussed retaliation against an invading enemy on the one hand, and 2) a lawless, reckless, or terrorist threat to murder civilians and spread poison erga omnes (against everyone) on the other hand.
I also submit that whatever the state of UK law on the deployment of Trident, nevertheless the risks of a nuclear holocaust by design or by accident, and the practice of nuclear deterrence with 100 kiloton nuclear warheads is a war crime and a crime against humanity and should thus be stopped, by this Court. Now that these facts have been brought to the attention of the Court it has a responsibility under the superiority of international law to back up global citizens, like myself, to reinforce the brave decision of Sheriff Gimblett and to use whatever powers it may have to enforce international law by ordering the UK to cancel their unlawful nuclear plans and operations and to immediately disarm Trident. I submit, that anything else would in fact be giving support to the illegal policies of the UK state and would be undermining international law.
Judge Panzer, who gave evidence at Greenock, explained how hundreds of lawyers and judges in Germany have learnt, from the terrible experiences under the Nazis, not to be complacent or to remain silent when their government acted unlawfully but to take their responsibilities for upholding international law seriously – to peacefully intervene to try to prevent war crimes and crimes against humanity before they could take place. They joined the Judges for Peace organisation and eventually 20 judges were arrested for blockading the US nuclear base at Mutlangen in the nineteen eighties. Before they could appeal their convictions the Pershing missiles at Mutlangen against which they were protesting were removed from Germany.
If the Crown are right, and private individuals have no right or role in preventing crimes that are organised and supported by the State, then this leaves only the servants of the same criminal State to address the problem. This is literally leaving it to the criminals to stop the crime. This may not be a totally effective strategy.
On this same point but from a slightly different angle, it has been suggested that while it may be right and lawful for a soldier or commanding officer to prevent war crimes from being carried out it is not right for a citizen to do so. This does not make sense to me. Let us consider a soldier who has been ordered to destroy a village full of civilians and who refuses to carry out the order and who tries to disable the tank that is going to do the destruction. Presumably he could be said to be acting lawfully under international humanitarian law. But he is held for a court martial and is imprisoned before he can disable the tank or do anything to actually prevent the crime from taking place. However, he does manage to get word to a citizen of that village or a ‘global citizen’ who then manages to nonviolently destroy that tank and prevents the village from getting blown up. Is that citizen thus committing a crime because she is not a soldier refusing to obey unlawful orders?
I would also like here to address directly the concern that has arisen that anarchy will arise if anyone arrogated to themselves the role of prosecutor, judge and jury and takes the law into their own hands. Far from endorsing a charter for bigots, however, the right of nonviolent, open and accountable citizen intervention to prevent the most serious crimes known to humanity, when the State actors themselves will not enforce international law, is itself a safeguard against lawlessness. That is why the first of Mr O’Neill’s principles is an objective test – namely, not did the accused believe that a crime was being committed but was it in fact being committed. I suggest that far from being anarchic, it is the mark of a civilised country that its members are prepared to assist in the maintenance of good order and it would be a mark of a wise judiciary to endorse such action as a necessary antidote to abuses of State power. One could go as far as to say that it is the State at the moment that is encouraging international anarchy by undermining international law.
This is why it is essential, in considering all of the issues before this Court, to start from an evaluation of whether Trident is unlawful. If in fact Trident is unlawful then our actions are defending rather than undermining the rule of law.
6. The uniqueness of nuclear weapons. 6(1)
President Bedjaoui, in his Declaration at paragraph 20 188 , said that the existence of nuclear weapons “is a major challenge to the very existence of humanitarian law”. Judge Weeramantry, in his Dissenting Opinion at Part V(1) 189 , argued that no credible legal system could contain a rule within itself which rendered legitimate an act which could destroy the entire civilisation of which that legal system formed a part. Such a rule could only find a place in the rules of a suicide club, and could not be part of any reasonable legal system. I believe this analogy was first advanced by the English philosopher of law, H.A.L.Hart. In a world where a number of states possess and deploy nuclear weapons, a very small part of which, if used, could destroy civilisation, it is clear that these weapons and weapon systems really are unique in an unparalleled sense. For any use of them – any use – necessarily exposes the world to the possibility of escalation to a truly apocalyptic nuclear exchange. The threat of use of a nuclear weapon is a threat to the world.
A legal system is usually distanced from the objective events on which it is required to make an impartial judgement. It limits its involvement to preserving its own integrity and reasonableness. It is detached. However, in the case of the threat posed by nuclear weapon systems, any judgement that the law provides, because of its possible reflexive effect in terms of destruction, has consequences for itself. The law cannot condone as lawful actions which potentially are destructive of itself, for if the full consequences of a nuclear war should follow, the law itself would disappear, along with its courts, judges, jurists, precedents, records, indeed its very memory. (Perhaps the ultimate contempt of court?). A legal system that allows the legality of indiscriminate nuclear threats would be the rule of a suicide club indeed. For this court to fail to condemn the continuing threat from the deployment of the Trident nuclear weapon system would be to assent to its own demise.
7. Do the NPT and other Treaties legitimise possession, threat to use or use of nuclear weapons? 7(1)
There has been some argument that the NPT 190 and other treaties like the various regional Nuclear-Free Zone Treaties legitimise the possession of nuclear weapons in that they recognise and even presuppose the existence of nuclear weapons as a matter of fact. I would like to rebut this. The ICJ nowhere states that the NPT or other treaties legitimates possession. It merely accepts the reality of possession – as we all do. In other words the NPT recognises the de facto possession by the 5 nuclear weapon states but nowhere confers de jure possession. Moreover, these treaties certainly do not recognise or imply the legality of the threat or use of nuclear weapons. The position of the non-nuclear weapon states is that they make the best of a bad job. They have had to accept that as a matter of fact certain states have nuclear weapons and have promised to negotiate them away. They have accepted a temporary right to possess whilst simultaneously the possessors negotiate disarmament. Any scintilla of legitimacy for their possession (should that be conceded) has worn away with the passage of 32 years and the failure of the nuclear weapon states to nail down the Article VI negotiations. To suggest that possession in accordance with the 1968 NPT implies legality of use, as the UK and US contended in the ICJ hearings, amounts to saying that the NPT is a license to use or threaten to use nuclear weapons which it is obviously not.
On the very first day of the oral hearings at the ICJ on October 30, 1995, Gareth Evans Q.C., Foreign Minister of Australia 191 , argued that the norm of non-possession of nuclear weapons under Article I and II of the NPT “must now be regarded as reflective of customary international law”. He stated that “if humanity and the dictates of the public conscience demand the prohibition of such weapons for some states, it must demand the same prohibition for all States. And following the end of the Cold War, there can no longer be, if there ever was, any practical imperative for treating nuclear-weapon States and non-nuclear-weapon States differently.” 7(3)
The Court essentially accepted that argument, unanimously concluding at para.105(2)(F) that: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”. Although not stated explicitly, the Court’s reasoning made it quite clear that this obligation applies to all states, including those outside the NPT.
Malaysia and Zimbabwe, in their jointly submitted written replies to various questions put by Members of the Court 192 stated, “To the extent the Court wishes to address the legality of possession, the NPT does recognise the existential fact that nuclear weapons will exist in the arsenals of the nuclear-weapons States party to the Treaty until the weapons are eliminated pursuant to the Article VI obligation and the other mandates of international law. Nowhere, however, does the Treaty in any way clothe this fact with any entitlement or right. Rather the Treaty acknowledges the fact of possession of nuclear weapons pending their elimination only indirectly, by identifying nuclear-weapon States as parties to the Treaty who have manufactured and exploded a nuclear weapon prior to January 1, 1967 (Article IX(3)) and placing certain obligations on those States, for example not to transfer nuclear weapons to any “recipient whatsoever” (Article I). In contrast, the prohibition of possession of nuclear weapons by States parties not meeting the definition of a nuclear-weapon State set forth in Article II directly and expressly establishes a rule of illegality of possession applicable to the vast majority of States. Combined with the illegality of threat or use of nuclear weapons and the nuclear disarmament obligation of Article VI applicable to the nuclear-weapon States, it appears that a universal rule of illegality of possession has crystallized, though States possessing nuclear weapons are still in the process of complying with that rule.” (my emphasis). 7(5)
Many other States also made good points to the Court which have been cogently summarised by Judge Weeramantry at Part VII (1) 193 . I will quote them in full as they forcefully rebut the Government position.
” (i) As already observed, the NPT has no bearing on the question of use or threat of use of nuclear weapons. Nowhere is the power given to use weapons, or to threaten their use.
(ii) The Treaty was dealing with what may be described as a “winding-down situation”. The reality was being faced by the world community that a vast number of nuclear weapons were in existence and that they might proliferate. The immediate object of the world community was to wind down this stockpile of weapons.
As was stressed to the Court by some States in their submissions, the Treaty was worked out against the background of the reality that, whether or not the world community approved of this situation, there were a small number of nuclear states and a vast number of non-nuclear states. The realities were that the nuclear states would not give up their weapons, that proliferation was a grave danger and that everything possible should be done to prevent proliferation, recognising at the same time the common ultimate goal of the elimination of nuclear weapons.
(iii) As already observed, an acceptance of the inevitability of a situation is not a consent to that situation, for accepting the existence of an undesirable situation one is powerless to prevent, is very different to consenting to that situation.
(iv) In this winding-down situation, there can be no hint that the right to possess meant also the right of use or threat of use. If there was a right of possession, it was a temporary and qualified right until such time as the stockpile could be wound down.
(v) The preamble to the Treaty makes it patently clear that its object is: “the cessation of the manufacture of nuclear weapons, the liquidation of all existing … stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery”.
That Preamble, which, it should be noted, represents the unanimous view of all parties, nuclear as well as non-nuclear, describes the use of nuclear weapons in war as “the devastation that would be visited upon all mankind”.
These are clear indications that, far from acknowledging the legitimacy of nuclear weapons, the Treaty was in fact a concentrated attempt by the world community to whittle down such possessions as there already were, with a view to their complete elimination. Such a unanimous recognition of and concerted action towards the elimination of a weapon is quite inconsistent with a belief on the part of the world community of the legitimacy of the continued presence of the weapon in the arsenals of the nuclear powers.
(vi) Even if possession be legitimised by the treaty, that legitimation is temporary and goes no further than possession. The scope and the language of the treaty make it plain that it was a temporary state of possession simpliciter and nothing more to which they, the signatories, gave their assent – an assent given in exchange for the promise that the nuclear powers would make their utmost efforts to eliminate those weapons which all signatories considered so objectionable that they must be eliminated. There was here no recognition of a right, but only of a fact. The legality of
that fact was not conceded, for else there was no need to demand a quid pro quo for it – the bona fide attempt by all nuclear powers to make every effort to eliminate these weapons, whose objectionability was the basic premise on which the entire treaty proceeded.” 7(7)
Equally, such temporary possession cannot cure an illegality of use and threat to use. All these treaties see nuclear weapons as a ‘bad thing’ – why else would States undertake to keep certain areas nuclear weapon free, or prevent proliferation and negotiate nuclear disarmament? In fact the legality or illegality of the threat or use of nuclear weapons can only be determined with reference to the law of the UN Charter and the requirements of the law applicable in armed conflict, in particular the principles and rules of humanitarian law. I refer you specifically to paragraphs 41, 42, 47, 48, 78, 79, 84, 85, 86, 87 and 89 of the ICJ Advisory Opinion 194 .
There is, by the way, nothing inconsistent with recognising that states possess certain weapons whilst denying their right to use them or to threaten their use. That was exactly the position for many states with asphyxiating gases under the 1925 Geneva Protocol, before the more recent Chemical Weapons Convention made the very possession unlawful. It may be useful for the Court to note that we are as a world community in a similar position now with no clear prohibition against the possession of nuclear weapons but with a draft Nuclear Weapons Convention lodged by Costa Rica at the UN in 1997 195 which awaits the support of the Nuclear Weapon States. You will also note from paragraph 73 of the ICJ Advisory Opinion 196 that it is the “strong adherence to the practice of deterrence” by States like the UK that hampers the emergence of a specific rule prohibiting the use of nuclear weapons.
In a similar way, treaties which regulate the means of warfare recognise and even presuppose the existence of armed conflict. The rules of humanitarian law which they enshrine apply to all the parties to the conflict – whether aggressor or victim. However, those treaties are without prejudice to the question of whether armed force was lawfully used in the first place. The fact that there are treaties which admit the existence of armed conflict and are designed to limit suffering in war does not legitimise armed conflict as a way of resolving disputes. Similarly, the fact that there are treaties which admit the existence of nuclear weapons does not legitimise their use. In any event these LAR proceedings are about the specific illegality and criminality of Trident in the context of HMG policy, not of nuclear weapons in the abstract or in general. And the threat or use of 100 kiloton nuclear warheads is indisputably unlawful.
To conclude on the question of state practice
8. State Practice and Opinio Juris 8(1)
The core of this question concerns not mere state practice but the practice of States coupled with acts to reflect and constitute opinio juris. In this connection it is not a matter of whether a handful of powerful and populous States would rather that international humanitarian norms of great antiquity and widespread support were held not to apply – rather inconveniently – to certain kinds of weapons (or rather, poison-scattering devices) that they are very attached to. The question is, have they come out publicly and shamelessly to say, “We believe that incinerating civilians and poisoning neutrals (etc.etc) are generally lawful things to do”? No, of course they have not done so. In fact, they repeatedly denounce such actions when engaged in by other States, thus re-inforcing their shared adherence to the global consensus as to opinio juris and also on intransgressible norms or jus cogens. So State practice alone, absent any attempted withdrawal from adherence to these general fundamental norms – such a bare State practice – does not amount to the kind of State practice clothed in honest speech which alone can establish opinio juris on a solid basis.
Moreover, as yesterday Lord Prosser canvassed several contractual analogies from civil law, it may be helpful to remind the Court that States parties to international conventions are no more capable of concluding valid agreements if their object is to violate deeper more general legal norms (for example, the Nazi-Soviet pact to dismember Poland) than would be any two commercial companies be free to conclude a pseudo-legal agreement to smuggle cigarettes or guns etc. In either case their psuedo-legal agreements are mere nullities with no legal effect whatsoever. Thus the Vienna Convention on the Interpretation of Treaties confirms that international agreements cannot be validly concluded violative of prior norms of international law jus cogens or ‘intransgressible’ norms to use the language of the ICJ. If this is true of whole treaties, how much less scope is there for one or two of a handful of States parties to a Treaty to seek to establish formally entered reservations which run counter to norms of jus cogens.
If the UK had entered its ‘understanding’ as a formal reservation this would have immediately led all anti-nuclear States, parties to the Geneva Protocol negotiations, to challenge that alleged reservation with their own counter-reservations deposited on signing or ratification which would have stated that they did not consider that the reservation of the UK rendered them bone fide participants in the Additional Protocols. It was precisely for this reason that as a matter of political expediency the UK sought to have it both ways in 1977 by entering merely an ‘understanding’ which they knew was unlikely to risk any counter-reservations. Since, for the anti-nuclear States to have entered such counter-reservations would have conferred legal significance on what was and remained a mere political declaration devoid of legal import. The arguments of the UK and US concerning their pseudo-reservations were canvassed before the ICJ at some length (certainly in much more depth and by many more international lawyers than this Court has been able to give) and it is in that context that the ‘understandings’ in the 1998 ratifications fail to obtain the hoped for purchase which might have lifted the class of nuclear weapons clear of the scope of the ‘grave breaches’ provisions of the Protocols and Act of 1995. I refer you once again to paragraph 84 of the ICJ Advisory Opinion which I submit makes it quite clear that the Protocols do apply to nuclear weapons.
9. Crime in War/Legal in Peacetime? 9(1)
It has been suggested that international humanitarian law, because it deals with armed conflict, is not applicable in times of peace. I would dispute that we are in a time of peace. I also dispute that we not engaged in armed conflict. Can the UK be said to be at peace, or not in a state of armed conflict, if is engaged in dropping bombs in Iraq at the present time? But whatever the situation, this suggestion if it were true, which I dispute, would lead to a very surprising conclusion – namely that if a certain mode of deployment of Trident was unlawful only in wartime, the UK would be in the position of having a weapon that can only be so deployed in peacetime and which would have to be withdrawn in times of war – this is hardly what the war-planners have in mind.
10. What is an illegal threat? 10(1)
In its Advisory Opinion, the ICJ 197 does not offer a comprehensive definition of “threat”. Its approach to the concept is, however, apparent from a sentence in the main paragraph (para.47) in which it discusses threats 198 . It says, “Whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, paragraph 4 of the Charter depends upon various factors.” Several points are implicit here. First, the existence of a threat is not predicated on the actor saying, overtly, “we threaten you”. A threat may be inferred from actions taken. Second, there is a certain contingency about a threat; there is an “or else” associated with it directed at the target State. But this does not mean that this deliberately targeted threat (implicit or explicit) may not also threaten those third party States and Peoples who, because of the nature of nuclear weapons, will necessarily also suffer grievous and illegal consequences from what I believe can be called ‘transferred’ and ‘constructive’ malice or recklessness. Thirdly, the Court was not ready to pin itself down to particular “factors”. Evidently the test is a flexible one depending on the circumstances.
Thus to answer the question “what is an illegal threat?” will depend on the circumstances surrounding Trident’s deployment and on adducing the necessary evidence. I submit that we gave this evidence at Greenock and that it was unrebutted. The ICJ acknowledges the importance of circumstances and necessary evidence in some of its cases. Please keep in mind while we discuss these ICJ cases the constant deployment, exercises and manoeuvres of British Trident that is always loaded with live nuclear warheads of 100 kilotons and with targets in the computers on board that take merely 10 minutes to be inserted 199 .
For instance in the Nicaragua Case 200 at para.227, the ICJ held that US military manoeuvres near the Nicaraguan border were not an illegal threat of force. It said: “The Court is however not satisfied that the manoeuvres complained of, in the circumstances in which they were held, constituted on the part of the United States a breach, as against Nicaragua, of the principle forbidding recourse to the threat or use of force” (my emphasis). The Court thus implied that the manoeuvres could or would have constituted an illegal threat if the circumstances had been different.
And in the Fisheries Jurisdiction Case 201 at p.3, one question was whether an agreement (Exchange of Notes) between Iceland and the UK was void (as Iceland contended) because it had been concluded under the threat or use of force. [Note. Article 52 of the Vienna Convention on the Law of Treaties 1969 provides that “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”].
The ICJ said at p.14: “a court cannot consider an accusation of this serious nature on the basis of a vague general charge unfortified by evidence in its support. The history of the negotiations which led up to the 1961 Exchange of Notes reveals that these instruments were freely negotiated by the interested parties on the basis of perfect equality and freedom of decision on both sides. No fact has been brought to the attention of the Court from any quarter suggesting the slightest doubt on this matter.” (my emphasis).
In his dissenting opinion, Judge Padilla Nervo 202 said at p.47: “A big power can use force and pressure against a small nation in many ways, even by the very fact of diplomatically insisting in having its view recognised and accepted. The Royal Navy did not need to use armed force, its mere presence on the seas inside the fishery limits of the coastal State could be enough pressure. It is well known by professors, jurists and diplomats acquainted with international relations and foreign policies that certain ’Notes’ delivered by the government of a strong power to the government of a small nation, may have the same purpose and the same effect as the use or threat of force.” (my emphasis). This dissent recognises that the mere presence of the Royal Navy can constitute a “threat of force”.
The term ‘illegal threat’ thus is sensitive to context. Within the context of the evidence given at Greenock it is quite clear that the ongoing deployment of 100 kiloton nuclear warheads on Trident is seen as an illegal threat by many non-nuclear states.
In regard to the meaning of any word in the English language, a good start is the Oxford English Dictionary (OED). In regard to the meaning of the word “threat”, the need to refer to the OED is strengthened by the absence of a clear, unambiguous definition, by Treaty, by the General Assembly of the UN, or by the ICJ. The OED defines “threat” as a ‘declaration of intention to punish or hurt’, ‘menace of bodily hurt or injury’, ‘indication of something undesirable coming’. Whatever one thinks about ‘mere possession’, Trident is much more of a menace than these dictionary definitions. A threat, in other words, may be something short of a warning shot. I submit that the deployment of Trident must be within the core meaning of ‘threat’ as the International Court of Justice seems to be using it.
As to the ‘illegality’ of such a threat, a threat to use Trident’s nuclear weapons is illegal because such use would be contrary to international humanitarian law. I refer you to my arguments in my first submission on the illegality of the threat to use Trident at paragraphs 4(43) to 4(49) and paragraphs 4(69) to 4(76). I submit that any use of the 100 kiloton nuclear warheads on the Trident nuclear weapon system would be contrary to international humanitarian law and thus any threat to use it must also be unlawful.
I think it is important to once more draw your attention the discussion of the illegality of nuclear threat or deterrence put so very clearly by Judge Weeramantry 203 in his Dissenting Opinion at Part VII(2) where he discusses the illegality of nuclear deterrence. “Deterrence as used in the context of nuclear weapons is deterrence from an act of war – not deterrence from actions which one opposes(166).
One of the dangers of the possession of nuclear weapons for purposes of deterrence is the blurring of this distinction and the use of the power the nuclear weapon gives for purposes of deterring unwelcome actions on the part of another state. The argument of course applies to all kinds of armaments, but a fortiori to nuclear weapons. As Polanyi observes, the aspect of deterrence that is most feared is the temptation to extend it beyond the restricted aim of deterring war to deterring unwelcome actions (ibid.).
It has been suggested, for example, that deterrence can be used for the protection of a nation’s “vital interests”. What are vital interests, and who defines them? Could they be merely commercial interests? Could they be commercial interests situated in another country, or a different area of the globe?
Another phrase used in this context is the defence of “strategic interests”. Some submissions adverted to the so-called “sub-strategic deterrence”, effected through the use of a low-yield “warning shot” when a nation’s vital interests are threatened (see, for example, Malaysia’s submission in CR 95/27, p. 53). This Opinion will not deal with such types of deterrence, but rather with deterrence in the sense of self-defence against an act of war.
(iii) The degrees of deterrence
Deterrence can be of various degrees, ranging from the concept of maximum deterrence, to what is described as a minimum or near-minimum deterrent strategy(167). Minimum nuclear deterrence has been described as:
“nuclear strategy in which a nation (or nations) maintains the minimum number of nuclear weapons necessary to inflict unacceptable damage on its adversary even after it has suffered a nuclear attack”(168).
The deterrence principle rests on the threat of massive retaliation, and as Professor Brownlie has observed:
“If put into practice this principle would lead to a lack of proportion between the actual threat and the reaction to it. Such disproportionate reaction does not constitute self-defence as permitted by Article 51 of the United Nations Charter.”(169)
In the words of the same author, “the prime object of deterrent nuclear weapons is ruthless and unpleasant retaliation – they are instruments of terror rather than weapons of war”(170).
Since the question posed is whether the use of nuclear weapons is legitimate in any circumstances, minimum deterrence must be considered.
(iv) Minimum deterrence
One of the problems with deterrence, even of a minimal character, is that actions perceived by one side as defensive can all too easily be perceived by the other side as threatening. Such a situation is the classic backdrop to the traditional arms race, whatever be the type of weapons involved. With nuclear arms it triggers off a nuclear arms race, thus raising a variety of legal concerns. Even minimum deterrence thus leads to counter-deterrence, and to an ever ascending spiral of nuclear armament testing and tension. If, therefore, there are legal objections to deterrence, those objections are not removed by that deterrence beingminimal.
(v) The problem of credibility
Deterrence needs to carry the conviction to other parties that there is a real intention to use those weapons in the event of an attack by that other party. A game of bluff does not convey that intention, for it is difficult to persuade another of one’s intention unless one really has that intention. Deterrence thus consists in a real intention(171) to use such weapons. If deterrence is to operate, it leaves the world of make-believe and enters the field of seriously-intended military threats.
Deterrence therefore raises the question not merely whether the threat of use of such weapons is legal, but also whether use is legal. Since what is necessary for deterrence is assured destruction of the enemy, deterrence thus comes within the ambit of that which goes beyond the purposes of war. Moreover, in the split second response to an armed attack, the finely graded use of appropriate strategic nuclear missiles or “clean” weapons which cause minimal damage does not seem a credible possibility.
(vi) Deterrence distinguished from possession
The concept of deterrence goes a step further than mere possession. Deterrence is more than the mere accumulation of weapons in a storehouse. It means the possession of weapons in a state of readiness for actual use. This means the linkage of weapons ready for immediate take-off, with a command and control system geared for immediate action. It means that weapons are attached to delivery vehicles. It means that personnel are ready night and day to render them operational at a moment’s notice. There is clearly a vast difference between weapons stocked in a warehouse and weapons so readied for immediate action. Mere possession and deterrence are thus concepts which are clearly distinguishable from each other.
(vii) The legal problem of intention
For reasons already outlined, deterrence becomes not the storage of weapons with intent to terrify, but a stockpiling with intent to use. If one intends to use them, all the consequences arise which attach to intention in law, whether domestic or international. One intends to cause the damage or devastation that will result. The intention to cause damage or devastation which results in total destruction of one’s enemy or which might indeed wipe it out completely clearly goes beyond the purposes of war(172). Such intention provides the mental element implicit in the concept of a threat.
However, a secretly harboured intention to commit a wrongful or criminal act does not attract legal consequences, unless and until that intention is followed through by corresponding conduct. Hence such a secretly harboured intention may not be an offence. If, however, the intention is announced, whether directly or by implication, it then becomes the criminal act of threatening to commit the illegal act in question.
Deterrence is by definition the very opposite of a secretly harboured intention to use nuclear weapons. Deterrence is not deterrence if there is no communication, whether by words or implication, of the serious intention to use nuclear weapons. It is therefore nothing short of a threat to use. If an act is wrongful, the threat to commit it and, more particularly, a publicly announced threat, must also be wrongful.
(viii) The temptation to use the weapons maintained for deterrence
Another aspect of deterrence is the temptation to use the weapons maintained for this purpose. The Court has been referred to numerous instances of the possible use of nuclear weapons of which the Cuban Missile Crisis is probably the best known. A study based on Pentagon documents, to which we were referred, lists numerous such instances involving the possibility of nuclear use from 1946 to 1980(173).
(ix) Deterrence and sovereign equality
This has already been dealt with. Either all nations have the right to self defence with any particular weapon or none of them can have it – if the principle of equality in the right of self defence is to be recognized. The first alternative is clearly impossible and the second alternative must then become, necessarily, the only option available.
The comparison already made with chemical or bacteriological weapons highlights this anomaly, for the rules of international law must operate uniformly across the entire spectrum of the international community. No explanation has been offered as to why nuclear weapons should be subject to a different regime.
(x) Conflict with the St. Petersburg principle
As already observed, the Declaration of St. Petersburg, followed and endorsed by numerous other documents (see section III.3, supra.) declared that weakening the military forces of the enemy is the only legitimate object which States should endeavour to accomplish during war (on this aspect, see section V.2, supra). Deterrence doctrine aims at far more – it aims at the destruction of major urban areas and centres of population and even goes so far as “mutually assured destruction”. Especially during the Cold War, missiles were, under this doctrine, kept at the ready, targeting many of the major cities of the contending powers. Such policies are a far cry from the principles solemnly accepted at St. Petersburg and repeatedly endorsed by the world community.”
11. Can State practice legitimise the threat to use nuclear weapons? 11(1)
Is the standing of a rule of humanitarian law vitiated by acts which are in breach of it? For example, does the practice of gassing whole groups of citizens by a State count as evidence for deciding what is law or not? Does the practice of terrorists and gangsters determine the law? Can a Dictatorial leader of a State determine the law? Can the awful practice of ‘ethnic cleansing’ by various states over the last decade make it lawful? Can the practice of the most powerful Nuclear Weapon States undermine and displace intransgressible principles that they themselves once adhered to? If it can then we are at the mercy of the powerful and the law will no longer be able to protect us from violence. It is up to all of us to make sure that this does not happen.
I submit that the practice of the powerful Nuclear Weapon States who threaten to use their nuclear weapons is contrary to the very essence and spirit of international humanitarian law and can never be legitimate however long they continue to ‘practice’ nuclear deterrence.
It might be useful for the Court to take a brief look at the general observations made by Professor James Crawford in his oral presentation to the ICJ on November 14th 1995 on behalf of the Solomon Islands. 204 At paragraph 17 he says, “The position of the Solomon Islands is quite clear. States are not prior to international law. They do not exist in a Lotus land of complete freedom to act except as they have expressly consented to the contrary …The principle of sovereignty – on which so much of the opposing argument expressly or by implication relies – is a normative principle, it is part of a system of international law. It is a system in which States move, and live, and have their being. Of course there is a world of fact, not always concordant with the prescriptions of international law. But the Court is the principal judicial organ of an organised international community under the Charter. The first universal organised international community that humanity has known. It is not an organ of a de facto community of Powers, who would, anyway, have little use for courts. No doubt the NPT nuclear states, and for that matter any other non-NPT States which have or may acquire nuclear weapons, retain the “power” to use those weapons – power in the sense of technological power. And the power the non-nuclear States share in, to invoke and develop international law, might seem pale against that glaring possibility. The Court can be realistic about these facts, but the development of international law is not simply a progress towards the acknowledgement of the unsocialised power of the few.” 11(4)
I would also like to refer you here to Judge Shi’s Declaration 205 , which is very short and to the point – only one page in fact. He says that the policy of nuclear deterrence “has no legal significance from the standpoint of the formation of a customary rule prohibiting the use of nuclear weapons as such. Rather, the policy of nuclear deterrence should be an object of regulation by law, not vice versa. The Court, when exercising its judicial function of determining a rule of existing law governing the use of nuclear weapons, simply cannot have regard to this policy practice of certain States as, if it were to do so, it would be making the law accord with the needs of the policy of deterrence. The Court would not only be confusing policy with law, but also take a legal position with respect to the policy of nuclear deterrence, thus involving itself in international politics – which would be hardly compatible with its judicial function.
Also, leaving aside the nature of the policy of deterrence, this “appreciable section of the international community” adhering to the policy of deterrence is composed of certain nuclear-weapon States and those States that accept the protection of the “nuclear umbrella”. No doubt, these States are important and powerful members of the international community and play an important role on the stage of international politics. However, the Court, as the principal judicial organ of the United Nations, cannot view this “appreciable section of the international community” in terms of material power. The Court can only have regard to it from the standpoint of international law. Today the international community of States has a membership of over 185 States. The appreciable section of this community to which the Opinion refers by no means constitutes a large proportion of that membership, and the structure of the international community is built on the principle of sovereign equality. Therefore, any undue emphasis on the practice of this “appreciable section” would not only be contrary to the very principle of sovereign equality of States, but would also make it more difficult to give an accurate and proper view of the existence of a customary rule on the use of the weapon.” 11(5)
In other words international law cannot just be what the powerful nations say it is – because as the Malaysian Ambassador put it “Otherwise we would be legitimizing the principle that might is right and we would have to come to the frightening conclusion that international law is on the side of the powerful, as interpreted by the powerful.” 206 11(6)
Perhaps it is enough to note the fact that many non-nuclear weapon States see us as the pariah or rogue States.
12. The Evidential Basis of the Lord Advocate’s Reference.
Lastly, I must come back once again to a major problem with this LAR. I have argued from the start that the most serious legal question that arose from our trial at Greenock was the issue of the legality of the UK Trident nuclear weapon system. I also argued that this is the question above all others that should be discussed at this Hearing. However, we have never clarified and agreed on what evidential basis these proceedings are working from – instead we have been working on an ad hoc practical basis. We have been denied the complete evidence from Greenock. For instance the testimony of the three Respondent’s and two of our witnesses has been denied to this Court. Although we have been allowed to raise some of the issues and arguments about the legal position of Trident it has been with many constraints, not least of which has been the inability of the Respondents to call expert evidence and the constraints of having to work within the framework of the 4 questions however widely interpreted.
In other words we are in fact having a legal discussion on a major issue of public importance without either the full testimony from Greenock and also without being allowed to call expert witnesses to give their testimony directly to this Court. This point is specifically apposite in the light of Mr.Menzies masterly attempt to annihilate the factual basis of the evidence put at Greenock and to undermine the credibility of our witnesses who as experts are allowed to refer to documents when explaining where their opinions as experts come from. I submit though that it would be unfair and misleading if the Judges were to infer from this that there is no factual base to the illegality and criminality of Trident’s possession, deployment, threat to use and use. Now while I am grateful that the Court has allowed a wide interpretation of the Lord Advocate’s questions I submit that it has now become clear that the Court has not been given the factual nor the legal information that they require to come to a wise, just and fully informed decision as to the legality of Trident. I may be mistaken in this and if I am and this Court rules that it is evident – even on the incomplete evidential basis and the incomplete International Law submissions put by advocates before this Court – that Trident is unlawful under International Law and that international humanitarian crimes are being committed at this moment, then I will, of course, be content. However, I think it fair to notify the Court now that if it rules that Trident is lawful on the basis of these proceedings that I will not consider justice to have been done. 12(3)
This is not because I am unpersuadable or irrational or wouldn’t respect the rulings from this Court if they ran counter to my opinions. It is because I will consider that once again the legality of Trident is being looked at through the back-door as it were. In response to Mr.Menzies’ point that there are no facts that arise from Greenock I would like to ask, if there were no facts at Greenock are there also no facts here in this Court? And if so how can this Court rule whether there is a crime or not? Therefore this Court may not be able to make headway in deciding whether Trident is lawful or not because it needs facts about proportionality and discrimination. As the ICJ said, it couldn’t make a more precise ruling because it didn’t have the facts or specific systems in front of it. I had been assuming that this Court did have some cognisance of facts about Trident. I submit that until a Court has called to the witness box the Commanders of Trident and the nuclear policy makers and have before them the true and complete picture of the facts of Trident and have before them international lawyers who can adequately answer the questions the Court has put as to the intricacies of what precisely international law does and does not permit in relation to the specifics of Trident then I will not have confidence in any ruling that suggests that international law can not protect us from Trident. If after a full and independent and publicly accountable judicial inquiry into Trident a Court then decides that Trident is lawful, then and only then would I believe that international law is weak and not developed enough to protect us and to live up to the fine principles of the de Martens Clause.
The point is that no court has looked directly at Trident. – or rather the officials within Government and the Military commanders who are responsible for operating an unlawful system – have never been put properly and directly in the dock. Trident has only been looked at through arguments trying to defend civil intervention or from some other defensive position. And thus the necessary quality of evidence to show the full extent of the nuclear crimes being committed or planned for has been lacking. The Court asked why we had never asked for a Declarator and Removal – the simple answer is that we cannot afford to. We have sought legal advice and been told it might cost several million pounds for such a major case. If this Court could ensure that such a public interest case could be free then we could proceed down this path straight away. If it is within the power of this Court to allow such a case to proceed then maybe you could take this submission as a motion for that and help set it in motion. That said, I would like to remind the Court that I gave personal testimony/evidence that was not hearsay about my own personal attempts to get officials to stop the nuclear crimes by taking part in information layings at magistrates courts in England. There have also been several attempts at Judicial Reviews. I am also in the process of attempting to set up a public interest litigation group of lawyers who will act on a pro bono basis whilst we raise funds. However, it takes years to exhaust all the possible legal remedies.
The evidential basis is also having an effect on the answering of the 4 questions put directly by the Lord Advocate. There is still some confusion about whether this is a kind of Appeal process. For instance the Advocate General, Linda Clark, called it an Appeal at a public meeting only last week. If it were an Appeal then presumably all the evidence that was before the original judge would also be available to the appeal court. As it is, the Court is asking questions of the Advocates that they cannot give the answers to. For instance, the question put to Mr. O’Neill as to whether our act of disarming Maytime was capable of preventing crime and/or was an act arising out of necessity is not necessarily relevant if this is not an appeal process. What is relevant is for this court to lay down the criteria for the guidance of future courts and in this respect I submit that the criteria in the Moss and Howdle case are adequate. I also submit that the action of disarming Maytime fulfilled the Moss and Howdle criteria and that I based one of my lines of defence on these criteria.
However, I do wish to address this Court on the capacity to prevent crime as several times the Court has pointed out that in the necessity/crime prevention defences one has to be able to prove that the act is actually capable of preventing the harm or preventing the crime. I agree and do not wish to be seen as dodging the issue. It has been insinuated that acts by Trident Ploughshares Pledgers, and specifically our act of destroying all the equipment on the barge Maytime, was not a direct enough causal link to provide the element necessary to found a valid legal defence. I would like to refute this. I submit now, as I did at Greenock, that our act on Maytime was capable of preventing crime.
Firstly, Maytime was an essential link in the Trident programme. Secondly, our action effectively broke that essential link. Thirdly, although the essential link, without which the whole Trident deployment system would soon have come to a grinding halt, was soon repaired and the equipment replaced, nevertheless this does not invalidate the crime prevention or the necessity to act. In the same way as a policeman taking a gun away from a criminal, or arresting a drug dealer, is not said to have failed in his crime prevention just because the gunman procures another gun, or other members of the drug ring, replace the person or the equipment or the drugs, and thus the drugs still get onto the street for sale with a scarcely noticeable difference at street level. Fourthly, our act cannot be seen as a single act – in the same way as a single policeman’s act needs to be put into the context of the crime prevention acts of the whole police force and the policies of the drug squad. Trident Ploughshares nuclear crime prevention acts are not isolated one off acts. There is a consistent policy, training, and plans to prevent the threat and use of nuclear weapons by Trident Ploughshares. We are in a continuing process and getting better at it. Only a couple of weeks ago yet another team disabled a vehicle used to transport dangerous nuclear warheads for Trident from Burghfield to Coulport. And don’t forget the two women who disabled the equipment on Vengeance delaying it for some months.
But we are working within a basic moral and legal framework that insists upon total nonviolence. Our Handbook – which was part of the evidence at Greenock and from which I read from the witness box and which can be viewed from our website – states our total commitment to accountable, nonviolent, open, and safe disarmament of mass destruction weapons. We emphasise that to be completely effective may take many different disarmament actions over an extended period of time because the Trident system is so large, complex and entrenched within the thinking and structure of the institutions of our nuclear weapon state. However, each act of disarmament is also a separate crime prevention act if you see the equipment and the specific job as part of a complex conspiracy.We also emphasise that just getting rid of the nuclear weapons at one particular time or in one country is not enough – that we will have to work over time and in all the nuclear weapon countries. And we acknowledge that continuing nuclear disarmament requires eventually that the State does its part. Citizens cannot complete the nuclear disarmament as it requires amongst other things the guarding of long-term storage of nuclear wastes that are actively dangerous for hundreds of thousands of years.
I know that we would ostensibly have had a better defence in law if we had blown up all 4 Trident nuclear submarines at once. On a superficial level such an act could be seen as proportionate to the crime that we say is being committed – namely the threat to all life on earth. And I am sure that a small group of determined citizens could actually do this but I would never suggest or back any such plan because it is not nonviolent or safe and could trigger off the very thing we are trying to prevent i.e. the destruction of all life on earth.
When I was told many years ago by a Judge at Kings Lynn Crown Court after I had taken part in a demonstration that I would have had a better defence in law if I had blown up a plane, I thought very carefully about the implications of this. It eventually led me to take part in the successful nonviolent and safe disarmament of a jet plane being exported to Indonesia that would have been used in the continuing genocide of various small tribes in East Timor. That particular plane was still out of action 6 months later when we came to trial and the Indonesians in the end refused to have it even when it was eventually rebuilt. The destruction of that plane was safe. It was easy to do safely. And the jury eventually found us not guilty.
But a complex nuclear weapon system like Trident cannot be safely, nonviolently, directly and totally disarmed by untrained citizens in one action at one moment in time. They cannot even be deployed safely (look at the problems the UK is having with the nuclear-powered hunter-killer submarines that have been recalled and look at General Lee Butler’s and Professor Paul Roger’s testimony on the danger from nuclear accidents). Such safe and nonviolent citizen disarmament will take time and care to be effective and on the way will bring in various state actors who will eventually finish the whole process off. Nevertheless just because preventing some of the international criminal actions taking place cannot be equated with preventing the whole massive nuclear weapons crime doesn’t mean to say that we are not preventing crime or acting out of necessity. We did disarm Maytime – one link was taken out. We cannot be blamed for the criminal actions of the people who put the equipment back again and started engaging in criminal activities once more.
13.Morality and Law 13(1)
There have been some comments during this trial to the effect that morality has no part to play in the law. I submit that this can never be so and particularly in a case like this. Morality underpins the law and without it the law has no legitimacy and our society would descend into selfish brutality. If the technicalities of the legal process and legal reasoning itself become so convoluted as to make no sense to the ordinary person in the street; if their own natural sense of what is right and wrong, just and unjust is completely at odds with the law; or if a ruling leaves everyone confused about what is lawful and what is not; then in all these cases the law has failed us. We must not be scared to look directly at Trident and to make an honest appraisal on moral and legal grounds.
Morality and legality are intertwined perhaps more so in humanitarian law than in other branches of the law. We have frequently had our attention drawn to phrases like “the dictates of public conscience” because it is a common human morality that underpins all international humanitarian law. It is indubitable that the firing of a 100 kiloton nuclear warhead from the British Trident system would shock all of mankind and would be a crime in most people’s eyes. The submariners carrying out orders to fire these warheads would be committing war crimes. This court has a duty to us all to say this fairly and squarely before the war crime is committed. Such a pronouncement from a court such as this would help prevent the launch of these mass-destruction nuclear warheads from ever taking place and do a great deal to encourage our Government to immediately disarm all its weapons of mass destruction and put its efforts into addressing the underlying causes of conflict.
When all is said and done, and the very necessary legal technicalities completed, and we are left alone with the rulings from this court – will justice have been done? Will the law have proved capable of protecting us? Or, will masterly legal wrangling lead us to the death of the world? Will the underlying morality that gives the law its legitimacy in the eyes of the general public be plain to see? Will the rulings be capable of being explained without shame and in simple language to young children with their ability to see clearly? Will the scales of justice come down on the side of annihilation or peace? It is in your hands.
14. Conclusion and Motions to this Court.
The ICJ 207 at paragraph 98 states that “In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently important to put an end to this state of affairs: the long promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.” 14(2)
This Court should consider a similar ruling in its conclusions and challenge the UK Government to disarm its own nuclear weapons system and by this action lead other nuclear weapon states to the long-promised nuclear disarmament which we all desire.
Many countries agree to go the International Court of Justice in order to have an impartial examination of territorial disputes, for instance, so that they can resolve problems without recourse to war. Governments can use the International Court as a face-saving device to enable the giving up of territory without being forced to extreme nationalistic posturing. For instance, a recent press communique from the ICJ 208 explains how Malaysia and Indonesia have gone to the Court ” ‘to determine on the basis of the treaties, agreements and any other evidence furnished by (them), whether sovereignty over Pulau Ligitan and Pulau Sipadan belong(ed) to the republic of Indonesia or to Malaysia’. They expressed the wish to settle their dispute ‘in the spirit of friendly relations existing between (them) as enunciated in the 1976 treaty of Amity and Co-operation in Southeast Asia’ and declared in advance that they would ‘accept the Judgement of the Court given pursuant to (the) Special Agreement as final and binding upon them’.”
It is difficult for a Government to give up power and land voluntarily but if a Government can point to a Judicial decision this can let them off the hook politically. The same may well be true of our present Government. It would be difficult politically for any UK Government to give up its nuclear weapons which are a powerful status symbol and Security Council ticket, and which would create severe strains on the UK’s position as the chief ally and supporter of the USA.
However, a ruling from the Highest Court in Scotland indicating that Trident is illegal could not be ignored. A clear message that the Trident system undermines international law would be a powerful step on the way to nuclear disarmament. There would be relief all round, especially from military commanders who well know that any use of presently deployed nuclear weapons would contravene the very humanitarian laws that they rely upon for their protection in any armed conflict and who are already feeling uncomfortable about the obvious mismatch between international law and Trident. At last the uncomfortable fudging would be over – the fudging that cannot be entertained in a situation of life and death. Soldiers need to know what is and what is not lawful. Soldiers are taught about the Geneva Conventions and Protocols – they are taught that they must not attack civilians. They are not taught and could not be taught that they cannot attack civilians except with 100 kiloton nuclear weapons – that when Trident is used the law can be set aside. These issues when they have arisen in the Armed Forces are usually fudged by the claim, “Do not worry, they will never be used.” Your ruling that trident is illegal could help the Armed Forces regain their legitimacy.
Apart from the specific answers to the four Questions from the Lord Advocate, which I specified in my skeleton argument and first submission and do not need to repeat, I would like to put the following motions to this Court and I therefore ask for the following:-
A clear statement that international humanitarian law applies in Scotland, and in England, Wales and Northern Ireland, that is to say, throughout the UK;
A clear statement that international humanitarian law applies to the UK Trident system;
A clear statement that any use of the 100 kiloton nuclear warheads on Trident would necessarily breach the intransgressible principles of humanitarian law as specified in the ICJ 209 Advisory Opinion of 1996 at para.78;
A clear statement that any order to launch a Trident missile armed with 100 kiloton nuclear warheads would be unlawful, as would any compliance with such an illegal incitement, such as to transmit or facilitate or execute such an order;
A clear statement that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control” 210 , that such good faith is not exhibited by the UK’s continuing deployment of nuclear weapons of such a size that they could never be lawfully used, and that therefore the active deployment of Trident should cease herewith and all warheads should be taken off the Trident missiles and stored separately from their delivery systems whilst further disarmament measures are undertaken;
A clear statement that the Nuremberg Obligation of Individual Responsibility applies to individual citizens acting nonviolently and safely and gives them authority to try to prevent any individual or State actor from preparing or carrying out “the most serious crimes of concern to the international community as a whole” even when this may contravene other legal norms of the law of the country in which they are acting.
Clear advice to members of the Armed Forces and civil servants who because of their involvement with the nuclear chain of command may find themselves placed in an excruciating dilemma by current government policy.
And if the Court cannot or will not make the motions above then to grant the following:-
The Court should place on record its understanding of the urgent necessity and desirability of a full, independent and publicly accountable judicial inquiry into the implications for the integrity of the Scottish legal system of the continuous hosting by Scotland of the UK Trident nuclear weapon system in the light of international humanitarian law.
Advice on what a Court such as this can be asked to do that would provide an effective remedy to our distress at living with the threat of mass murder hanging over our world community.
Bearing in mind that the ICJ, in its attempt to help the world community, made a concluding and unanimous decision on a matter not put before it in the original question, i.e. the international obligation to perform nuclear disarmament in all its aspects, under strict and effective international control, this Court might similarly wish to consider any rulings that might help the Scottish community.
Friday 17th November 2000
At the start of Hearing on Friday I handed up to the Judges a copy of The Pax Legalis Papers – a book written by Robert Manson and as I had no voice (suffering from a bad cold) handed the following note to Lord Prosser who accepted it as a continuation of my submission from yesterday. That note said:-
I apologise for not being able to speak myself – I have very little voice left.
Yesterday I mentioned the Pax Legalis Papers – I have only managed to find the one copy for which I apologise – but other copies can be found in the library.
I bring it to your attention because it will help back up my statement that we have tried everything we can think of and are cpable or or have resources for, to bring to proper judicial notice of the English Judicial system, the issue of the illegality and criminality of UK nuclear weapons.
It is one of the written up accounts of just one of the very many attempts to put directly before the English Courts, the crimes that we say are being committed by members of the Government and the Armed Forces in connection with the UK nuclear weapon system.
It may also be of help in that it details some of the national and international crimes that we say are being committed.
You will note that it is written by Rob Manson, a co-founder with me, of the Institute of Law and Peace.
Our present acts of disarmament are now being done in parallel with continuing attempts to get he Courts to look at the issue because after so many years of legal initiatives that have come to nothing substantial in the end, and because of the continuing threat to use nuclear weapons and the continuing imminent danger that we are still facing, we cannot delay any longer. We cannot await the outcome of a very uncertain process with its proven (in the English Judicial system) delays, problems and evasions and what some have deemed an unlikely inquiry into Trident’s illegality. I apologise for their being no written up material on the substantial efforts made within the Scottish system.
1. 3 Interlocutor Sheets of April 4th, September 12th and September 29th Procedural Hearings – “refused the motion … to record all proceedings at the hearing”. [Ref.1]. 2. Letters from Angie Zelter to Court of 18/4/00 (2a) and Motion Before the Court on 12/9/00 (2b). [Ref.2]. 3. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22. 28th August 1946. Taken from the Official Transcript. Published by HMSO, London, 1950. P.243. [Ref.3]. 4. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, 1998, Preambular para 4 and Article 5(1). [Ref.4. 5. Principles of the Nuremberg Tribunal, 1950. [Ref.14]. 6. Greenock Defence Production – H14 – Pledge to Prevent Nuclear Crime. [Ref.5]. 7. Greenock Defence Production – H17 – Joint Statement of Zelter, Roder and Moxley, Page 1. [Ref.6]. 8. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. Wed 20th October 1999 p.151 C. [Ref. 7]. 9. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.2 and p.38. [Ref. 8]. 10. UN Resolution A/RES/54/54Q ’Follow-Up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’, paras 1 and 2. [Ref.9]. 11. Letters from Angie Zelter to Lord Advocate of 18/4/00 (10a) and 22/7/00 (10b) (and see Ref.2a for letter to the Court of 18/4/00). [Ref.10]. 12. Report of Sheriff Gimblett to Lord Justice general et al, Lodged at Justiciary Office 21 August 2000, p.137. [Ref. 8]. 13. Lord Advocate’s Reference Petition of the Rt. Honourable the Lord Hardie, Justiciary Office Lodged on 21 January 2000. [Ref.11]. 14. Report of Sheriff Gimblett to Lord Justice general et al, Lodged at Justiciary Office 21 August 2000, p.32 and p.33. [Ref.8]. 15. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, para.75, July 8th 1996. [Ref. 12]. 16. Times Law Report, 19/5/99, International Law Report, Immunity for United Nations Expert. [Ref.13]. 17. Principles of the Nuremberg Tribunal, 1950. [Ref.14]. 18. Charles.J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000. [Ref.16]. 19. President Judge Bedjaoui’s Declaration, paragraphs 9, 11, & 20. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref. 15]. 20. Charles J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000, p.158. [Ref. 16]. 21. See Professor Paul Roger’s evidence at page 6-9 where he explains the present structure of British nuclear forces). Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999. [Ref.7] 22. See Professor Paul Rogers testimony at pages 10 and 14-15. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999. [Ref.7] and [Ref.32. Greenock Defence Production – No.5 – “Trident, Britain’s Weapon of Mass Destruction”, John Ainslie, p.1. March 1999.] and [Ref.80. Written Parliamentary Answer 28/11/91 and Strategic Nuclear Weapons Policy, House of Commons Defence Committee Minutes 17/3/82 on replacement of Chevaline with Trident]. 23. 1991 NATO Strategic Concept Document, Article 38. [Ref.17]. 24. Nicholas Lyell’s November 15th 1995 Oral Statement, CR 95/34, p.45-47. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref. 18]. 25. President Judge Bedjaoui’s Declaration, para. 22. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref.15]. 26. Christopher Greenwood, International Committee of the Red Cross No.316, p.65-75, January 1997. [Ref.19]. 27. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para. 78. [Ref. 12]. 28. R v. Ministry of Defence, ex p Walker  1 WLR 806, 812B. [Ref.20]. 29. Additional Protocol 1 of 1977 to the Geneva Conventions of 1949, Article 48. [Ref.21]. [Note. When ratifying these protocols in 1998 the UK stated that the rules ’do not have any effect on, and do not regulate or prohibit the use of nuclear weapons’. However, this Reservation is clearly incompatible with the object and purpose of the protocols, which is to protect civilians in armed conflicts. All Reservations are covered under Article 2(i)(d) of the Vienna Convention on the Law of Treaties and Article 19(c) states that Reservations are invalid if they are incompatible with the object and purpose of the Treaty. Moreover, the statements put out by the Foreign Office on this not being a Reservation but a ’Statement of Understanding’ which ’reflects a widespread position’ is misleading in that it is only the Nuclear States and their allies that have this ’understanding’. Treaties cannot be abused in this way. Interestingly no Reservation or Understanding seems to be included in the 1995 Act that directly incorporates these Protocols into UK law. If you look at para.85 and 86 of the ICJ Advisory Opinion you can see it states that “there can be no doubt as to the applicability of humanitarian law to nuclear weapons”]. 30. Commentary of the International Committee of the Red Cross, 1987, para.1863. [Ref. 22]. 31. Preparatory Commission for the International Criminal Court, PCNICC/1999/WGEC/INF2/Add.1(30 July 1999) p14. [Ref.23]. 32. Prosecutor v. Milan Martic (Rule 61 Decison), Case No. IT-95-11-1 (8 March 1996), para.15. [Ref. 24]. 33. Letter of 3rd July 2000 from Alan Hughes, Directorate of Nuclear Policy, MoD, to Angie Zelter, para.4. [Ref.79]. 34. UK Strategic Defence Review, Ch.2, para.23, July 1998. [Ref.25]. 35. Letter of 28/9/00 from Stephen Willmer, Proliferation and Arms Control Secretariat of the Ministry of Defence, to Angie Zelter, p.1, para.3 and p.2, para.2. [Ref.85]. 36. “UK Defence Strategy: A Continuing Role for Nuclear Weapons?”, Malcolm Rifkind, Speech, London, November 1993. Para.31. [Ref. 26]. 37. UK Strategic Defence Review, July 1998. [Ref.25]. 38. UK Strategic Defence Review, Ch.5.87, July 1998. [Ref.25]. 39. UK Strategic Defence Review, Ch.2.19 & 2.40, July 1998. [Ref.25]. 40. UK Strategic Defence Review, Ch.4.63, July 1998. [Ref.25]. 41. The Bulletin of the Atomic Scientists, September/October 2000, p 71. [Ref.81]. 42. See Professor Paul Rogers’ testimony at pages 12 and 30-31, Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999. [Ref.7.] 43. UN Security Council Resolution S/RES/984/(1995), 11th April 1995, 2nd Preambular para, and 1st para. [Ref.84]. 44. Nuclear Weapons and the Law, Lord Murray, Medicine, Conflict and Survival, Vol.15, 126-137, 1999, p.134. [Ref.27]. 45. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999, p.12. [Ref.7]. 46. Dissenting Opinion of Vice-President Judge Schwebel, p.9-12. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref.28]. 47. Hansard, House of Commons Debate, February 17th 1998, 906. [Ref. 29]. [Note. The reason for bringing in the United States so often is because of the interconnected nature of the British and US Trident systems – both hardware and software – systems and policies – see Professor Boyle’s testimony at pages 8-10 and 85 -90 [Ref.7. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999.] 48. Charles.J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000, Ch.20. [Ref.16]. 49. 1991 NATO Strategic Concept Document, Article 38. [Ref.17]. 50. [Note. The New Zealand Government in its Instrument of Ratification made the following interpretative declaration:- “The Government of New Zealand notes that the majority of the war crimes specified in article 8 of the Rome Statute … make no reference to the type of the weapons employed to commit the particular crime. The Government of New Zealand recalls that the fundamental principle that underpins international humanitarian law is to mitigate and circumscribe the cruelty of war for humanitarian reasons and that, rather than being limited to weaponry of an earlier time, this branch of law has evolved, and continues to evolve, to meet contemporary circumstances. Accordingly it is the view of the Government of New Zealand that it would be inconsistent with principles of international law to purport to limit the scope of article 8, in particular article 8(2)(b), to events that involve conventional weapons only”]. 51. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 8. [Ref.4]. 52. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 28. [Ref.4]. 53. Ministry of Defence, UK. Crown, 1981. The Law of Armed Conflict, p 38, Section 10, Service Discipline: 1. [Ref.39]. 54. A-Bomb: A City tells its Story, Yoshiteru Kosakai, 1972, p.8,47,48 (30a) and Hibakusha, Nihon Hidankyo, 1982, p.9 (30b). [Ref.30]. 55. The Outline of Atomic Bomb Damage in Hiroshima, Hiroshima Peace Memorial Museum, June 1999, p.20 & 25. [Ref.30(c)]. 56. Ryuichi Shimoda et al vs. The State, Tokyo, December 1963. [Ref.31]. 57. Nicholas Lyell’s November 15th 1995 Oral Statement, CR 95/34, p.46 & 47. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, p.47. [Ref.18]. 58. Greenock Production – 5 – “Trident, Britain’s Weapon of Mass Destruction”, John Ainslie, March 1999, p.1. [Ref.32]. 59. The Use of Trident in War, Professor Paul Rogers, September 2000. [Ref.75]. 60. Map of damage to Edinburgh with 100kt Trident warhead – John Ainslie. [Ref. 77]. 61. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 25 (3c). [Ref.4]. 62. Charter of International Military Tribunal at Nuremberg, Articles 6. [Ref.33]. 63. Non Governmental Statement to be Submitted to the International Court of Justice, May 3 1995, Japan Center of World Court Project, p.25. [Ref.34]. 64. Dissenting Opinion of Vice-President Judge Schwebel, p.1, 12. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref. 28]. 65. Thinking about Nuclear Weapons, Michael Quinlan, MoD, RUSI Whitehall Paper Series 1997, p.14-15. [Ref.78]. 66. Britain Ponders Single Warhead Option, International Defence Review (September, 1994), David Miller, p.50. [Ref.82]. 67. Letter of 28/9/00 from Stephen Willmer, Proliferation and Arms Control Secretariat of the Ministry of Defence, to Angie Zelter. [Ref.85]. 68. “The Next Chevaline Scandal?” Alan Simpson MP and CND, August 11th 1999, p.1 & 17. [Ref.35]. 69. UNGA 53, First Committee, UK Explanation of Vote, L.48/Rev 1: Towards a Nuclear-Weapon-Free World: The Need for a New Agenda, 13 November, 1998. [Ref.36]. 70. UN Resolution A/RES/54/54Q on ’Follow-Up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’. [Ref.9]. 71. Final Document Issued By 2000 NPT Review Conference, May 20th 2000, p.19. [Ref.37]. 72. Letter to Angie Zelter from Hazel Finch, Ministry of Defence, October 23rd 1997. [Ref.38]. 73. Trial of Wilhelm List and Others, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), vol 8, p 67. [Ref.87]. 74. Digest of Law and Cases, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), Vol 15, p 175. [Ref.88]. 75. Trial of German High Command, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), Vol 12, p 123. [Ref.89]. 76. Trial of German High Command, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), Vol 12, p.124. [Ref.89]. 77. Krupp Trial, Law Reports of Trials of War Criminals, UN War Crimes Commision (HMSO, London 1949), Vol 10, p 138 and 140. [Ref.90]. 78. Indictment for Conspiracy and Incitement, George Delf, 1980’s and The Pax Legalis Papers – Nuclear Conspiracy and the Law, Robert Manson, Jon Carpenter and INLAP, 1995. [Ref.40]. 79. House of Commons Written Questions, 13 December 1999: Column 40W. [Ref.41]. 80. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.23. [Ref.8]. 81. Lord Advocate’s Reference Petition of the Rt. Honourable the Lord Hardie, Justiciary Office Lodged on 21 January 2000. [Ref.11]. 82. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Friday 1st October 1999. [Ref.7]. 83. Ibid. p 52-58, 63, 82. 84. Ibid. p56. 85. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Monday 18th October 1999, p 87. [Ref.7]. 86. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Monday 18th October 1999, p 12, 74. [Ref.7]. 87. Ibid. p 93. 88. Ibid. p 64-65,73,75. 89. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Friday 15th October 1999, p.6. [Ref.7]. 90. Ibid. p.9-16. 91. Ibid. p.6-8. 92. Ibid. p.18-22. 93. Lord Advocate’s Reference Petition of the Rt. Honourable the Lord Hardie, Justiciary Office Lodged on 21 January 2000. [Ref.11]. 94. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Thursday 21st October 1999, p169-171. [Ref.7]. 95. Transcript i. c. H. M. Advocate v. Zelter, Roder, Moxley, Thursday 21st October 1999, p168. [Ref.7]. 96. Geneva Conventions Act, 1957. [Ref.42]. 97. Geneva Conventions (Amendments) Act, 1995. [Ref.43]. 98. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19. 26th July 1946. Taken from the Official Transcript. Published by HMSO, London, 1948, p.427. [Ref.44]. 99. Principles of the Nuremberg Tribunal, 1950, Principle II. [Ref. 14]. 100. M Dixon, Textbook on International Law, 3rd Edition, 1996, p.130-131. [Ref.45]. 101. R v. Bow Street Magistrate, Ex parte Pinochet (No 1)  1 A.C. 61 at 90E. [Ref. 46]. 102. R v. Bow Street Magistrate, Ex parte Pinochet (No 1)  1 A.C. 61 at 89G and 98H. [Ref. 46]. 103. R v. Bow Street Magistrate, Ex parte Pinochet (No 3)  1 A.C. 147 at 276B and 285A. [Ref.47]. 104. Oppenheim’s International Law, Vol.1, 9th Edition, 1992, ed. Sir Robert Jennings QC and Sir Arthur Watts QC, p.56. [Ref.48]. 105. R.Higgins, Problems and Process, Oxford, 1994, p.213. [Ref.50]. 106. Compania Naviera Vascongado v. S.S. Cristina  A.C. 485 p.497. [Ref.51]. 107. Statute of the International Court of Justice, Article 38. [Ref.52]. 108. Trendtex  1 All E.R. 881, p.888. [Ref. 53]. 109. In re Piracy Jure Gentium  A.C. 586, p.588. [Ref. 54]. 110. Radwan v. Radwan  3 W.L.R. 735, p.741. [Ref.55]. 111. R v. Bow Street Magistrate, ex parte Pinochet (No 3)  1 A.C. 147, 214G. [Ref.47]. 112. Principles of Public International Law, OUP, 4th edition, 1990, p.24-25. [Ref.56]. 113. In re Piracy Jure Gentium  A.C. 586, p.592. [Ref.54]. 114. R v. Bow Street Magistrate, ex parte Pinochet (No 3)  1 A.C. 147, 278F-G. [Ref.47]. 115. American Law Institute, Restatement of the Foreign Relations Law of the United States (Third), Vol.1, 1-488, 1987, p60-62. [Ref. 57]. 116. R.v. Bonadie, 1996 CCC Lexis 2765; 109 C.C.C. 3d 356, Ontario Court, p.31. [Ref.76]. 117. (a) Zivilzpozessordnung, Artikel 128 und 411; (b) Austrian Code, Artikel 176 und 357. [Ref.49]. 118. Appeals Chamber of the International Criminal Tribunal of Former Yugoslavia, 38 International legal Mat. 1518 (1999) July 15, 1543 para.129 and 1590-91 note 155. [Ref.69]. 119. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.59, 60 and 134. [Ref.8]. 120. [Note – List of English cases Prof. Grief has appeared in as an expert in international law are:- Langran (Inspector of Taxes) v. Hayter, Exeter County Court, 27 November 1984; Green (Collector of Taxes) v. Pickvance, Birmingham County Court, 27 February 1985; R v. Hutchinson, West Berkshire Magistrates’ Court, 15 January 1999, Reading Crown Court, 3 June 1999; R v. Vinthagen and others, Preston Crown Court, 18 October 1999; R v. Crane and others, West Berkshire Magistrates’ Court, 16 February 2000.] 121. Transcript i.c. H.M.Advocate v.Zelter,Roder, Moxley, Friday 1st October 1999, 11A-D. [Ref.7]. 122. M.Dixon, Textbook on International Law, 3rd Edition. 1996, p131. [Ref. 45]. 123. International Court of Justice, General List No. 95, 8th July 1996, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, paras105(2) (a)and (b). [Ref.12]. 124. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19. 26th July 1946. Taken from the Official Transcript. Published by HMSO, London, 1948, p.428. [Ref.44]. 125. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19. 26th July 1946. Taken from the Official Transcript. Published by HMSO, London, 1948, p.428-9. [Ref.44]. 126. Declaration of Judge Bedjaoui appended to the ICJ Advisory Opinion, para 20. [Ref.15]. 127. Dissenting Opinion of Judge Weeramantry appended to the ICJ Advisory Opinion, para 53. [Ref.58]. 128. The Zyklon B Case, Hamburg, March, 1946, Trial of Bruno Tesch and Two Others. [Ref.59]. 129. Statute of the International Court of Justice, Article 38(1)(c). [Ref.52]. 130. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 29th August, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.312. [Ref.60]. 131. Additional Protocol 1 of 1977 to the Geneva Conventions of 1949,Article 1(2). [Ref.21]. 132. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para.78. [Ref.12]. 133. Dissenting Opinion of Judge Weeramantry appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref.58]. 134. Charles J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000, p.210-214. [Ref.16]. 135. Disenting Opinion of Judge Weeramantry appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, p.34. [Ref.58]. 136. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para.95. [Ref.12]. 137. Corfu Channel Case, ICJ Reports 1949, p. 4, 22. [Ref.71]. 138. Oppenheim’s International Law, Vol.1, 9th Edition, 1992, ed. Sir Robert Jennings QC and Sir Arthur Watts QC, p.998. [Ref.48]. 139. Judge Ranjeva’s Separate Opinion appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, last para. [Ref 73]. 140. Steele v. United Kingdom (1999) 28 E.H.R.R. 603, parra.92 & 101. [Ref.72.]. 141. Iatridis v. Greece (2000) 30 E.H.R.R. 97, para. 58. [Ref.74]. 142. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 30t September, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.447. [Ref.60]. 143. Hansard H.L. Vol.233. Col.831. 2 Dec’63. [Ref.62]. 144. The Zyklon B Case, Hamburg, March, 1946, Trial of Bruno Tesch and Two Others. [Ref.59]. 145. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.32-33 and 135. [Ref.8]. 146. Respect the Law: Dismantle Trident – an open letter to Tony Blair from global citizens of Ploughshares 2000. [Ref. 63]. 147. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.38. [Ref.8]. 148. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, paras 42 and 48, July 8th 1996. [Ref.12]. 149. Greenock Defence Production – H17 – Joint Statement of Zelter, Roder and Moxley. [Ref.6]. 150. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000 p.151 A-B. [Ref.8]. 151. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.3. [Ref.8]. 152. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.135-6. [Ref. 8]. 153. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19, 26th July, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.428-9. [Ref. 44]. 154. State of Vermont v. Harold G McCann. District Court of Vermont, Unit 2, Chittenden Circuit, Docket No. 2857-7-86 CnCr, VT District Court, Jan 26 1987, Chittenden, p.1. [Ref. 64]. 155. Ibid. p.6. 156. In re Yamashita, 327 US, (1945), p.15, para..2 and p.16, para.2. [Ref.65]. 157. State of Vermont v. Harold G McCann. District Court of Vermont, Unit 2, Chittenden Circuit, Docket No. 2857-7-86 CnCr, VT District Court, Jan 26 1987, Chittenden, p.15. [Ref.64]. 158. Ibid. p.16. 159. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.22-23. [Ref.8]. 160. Universal Declaration of Human Rights, Article 8]. This is echoed in the International Covenant on Civil and Political Rights in Article 2(3). [Ref.66]. 161. International Covenant on Civil and Political Rights, Article 2(3). [Ref.67]. 162. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 30t September, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.447. [Ref.61]. 163. Principles of the Nuremberg Tribunal, 1950. [Ref. 14]. 164. Universal Declaration of Human Rights, Preambular para.3. [Ref.66]. 165. Ibid. Preambular para.8. 166. Ibid. Article 28. 167. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para.25. [Ref.12]. 168. Universal Declaration of Human Rights, Preambular para 3. [Ref.66]. 169. Ibid. 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Another example of a brave refusal to obey the laws of his own country for the greater good is that of Captain Nikitin who revealed (through a Norwegian ENGO) the disastrous environmental damage perpetrated by the Russian military. After months in prison he was finally released because of international pressure and the charges were eventually dropped. The Russian Supreme Court has very recently affirmed the dismissal of charges against him on the grounds of the people’s right to access to information that deeply effects them which overrides the technical considerations of military secrecy and security]. 187. The Justice Case, Nuremberg, December, 1947, Opinion and Judgement of United States Military Tribunal at Nuremberg in United States vs. Josef Altstoetter, et al at pages 1196-1253 of The Law of War, A Documentary History – Volume II, Edited by Leon Friedman, New York, 1972. [Ref.97]. 188. 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I have received much help and advice as well as support from many people, some of whom wish to remain anonymous, but my heartfelt thanks go to all of you. I would especially like to thank the following friends and colleagues:- John Ainslie, John Burroughs, Roger Clark, Liz Crocker, George Delf, George Farebrother, Marguerite Finn, Nick Grief, Ross Hesketh. Rebecca Johnson, Peter Lanyon, David Mackenzie, Keith Mothersson, Satomi Oba, Ulf Panzer, Isabel Pickering, Glen Rangwalla, Lorna Richardson, River, Paul Rogers, Camilla Saunders, Keiko Shimizu, Phil Shiner, Fred Starkey, Jane Tallents, and Alan Wilkie. Written by Angie Zelter.
Submission to the Court on 10th and 11th October and 16th and 17th November 2000.
Word Count 46,699.