Report of Proceedings
Sheriff Court, Greenock
Sheriff M. Gimblett, and a Jury
H.M. ADVOCATE v. ANGELA CHRISTINA ZELTER, BODIL ULLA RODER and ELLEN MOXLEY
Friday, 1st October 1999. Fifth Day.
Mr. D. Webster, Procurator-Fiscal, for the Crown;
Mrs. A. Zelter, First Accused, appeared on her own behalf;
Mr. J. Mayer, Advocate, for the accused Roder;
Mr. J. McLaughlin, Advocate, for the accused Moxley.
SHERIFF GIMBLETT: Now, do you have no preliminary motions today?
MR. MAYER: More of an intimation, my lady — it is anticipated that the Defence will be now leading a witness out of the usual trial sequence, that is during the Crown case. The court is aware that this witness has come from the United States of America and that he is only available today. He has professional and other obligations — I don’t mean of a social nature — I mean of a University nature — and he is only available today. I have clear instructions, my lady, to dispense with the need for the interpreters during the whole of that witness’s evidence. The interpreters are provided by the Crown, very properly and fairly, in order that the second accused can have a fair trial in what is to her a foreign country, and she has dispensed with any rights she may have to an interpreter in order to contribute to the speed with which this witness gives his evidence, and I am in a position to say that she has read somewhat avidly the publications of this witness, if not all of them, certainly his books, and certain other publications. Consultations have been lengthy, and she anticipates in some detail what the witness will say, and it’s against that background, my lady, I have had a preliminary word with the interpreters, although I have no control over them, and have explained the situation to them. I am obliged, my lady.
SHERIFF GIMBLETT: Thank you, Mr. Mayer. I think, as this is slightly unusual, if you don’t mind, I would wish to take Miss Roder’s instructions personally.
MR. MAYER: Certainly, my lady.
SHERIFF GIMBLETT: Miss Roder, would you stand up? May I ask if you understood what counsel has said on your behalf?
THE ACCUSED RODER: Yes.
SHERIFF GIMBLETT: Do you agree with what he has said?
THE ACCUSED RODER: Yes.
SHERIFF GIMBLETT: For the avoidance of doubt, may I please as you if you are willing to dispense with the use of an interpreter while the next witness gives his evidence?
THE ACCUSED RODER: Yes.
SHERIFF GIMBLETT: Thank you. Mr. Mayer, I think what I will do, although I suspect this has already been agreed, that the interpreters should remain just in case anything crops up on which Miss Roder would like interpretation.
MR. MAYER: I am in the court’s hands, my lady.
SHERIFF GIMBLETT: Mr. Webster, is there anything you would like to say?
MR. WEBSTER: My lady, I obviously didn’t anticipate this motion, and while it is a Defence motion which I wouldn’t formally oppose, I am obviously somewhat concerned that in effect we are going to hear a portion of the evidence in the trial without the accused having the benefit of an interpreter, and I assume from what my friend has said…..
SHERIFF GIMBLETT: Stop. Would you let the interpreter…..
MR. WEBSTER: I assume from what my friend has said that the witness is not a Danish speaker.
MR. MAYER: That is so, my lady.
MR. WEBSTER: I appreciate what my friend has said with regard to the accused’s familiarity with certain written articles by this witness, but the fact remains that albeit on a motion of the Defence counsel for Miss Roder, she is in effect going to be without the services of an interpreter for a portion of the evidence in the trial.
SHERIFF GIMBLETT: I don’t think that is quite right, because I have said that if she is going to dispense with a interpreter, the interpreters should remain there should they be needed and should she not understand anything or be unhappy about anything that is being said.
MR. WEBSTER: I take it from what my friend has said on the tape, the fact that she is not going to have the same services of the interpreter as she has had to this point is not a matter which would be founded upon at any later stage in any later proceedings?
MR. MAYER: My lady, I am happy to provide that undertaking, and for the record, on behalf of the Second Panel I will not found in any other place upon the fact that the Second Panel has dispensed with this provision, in other words I shall not appeal it.
SHERIFF GIMBLETT: Yes, I don’t doubt your word for one minute, Mr. Mayer, but again in the unusual circumstances of this case, I would like Miss Roder to give me a similar undertaking, because of course she could instruct somebody else.
MR. MAYER: Absolutely, my lady.
SHERIFF GIMBLETT: Miss Roder, would you stand up? Would you be willing to give me an undertaking that you will not use the fact that you have no interpreter for the next witness as a point to be raised in any appeal?
THE ACCUSED RODER: Yes.
SHERIFF GIMBLETT: Thank you. Mr. Webster?
MR. WEBSTER: As I say, my lady, I don’t formally oppose the motion because it comes from (inaudible) although I still have some concerns about the matter, particularly given the ECHR rights which an accused has to a fair trial in a foreign country and the rights to have proper access to an interpreter, but since the motion comes from the Defence and given that indication, I wouldn’t formally oppose it.
SHERIFF GIMBLETT: Yes; again, to allay your fears, Mr. Procurator-Fiscal, what I am going to do is to ask Miss Roder — you may remain seated, Miss Roder, this time — if she is fully aware of her rights under the European Court of Human Relations legislation.
MR. WEBSTER: No, it’s Convention.
SHERIFF GIMBLETT: I beg your pardon, Convention, the particular point in this case being of course that she is entitled to have an interpreter at all times during this trial.
THE ACCUSED RODER: Yes.
SHERIFF GIMBLETT: Thank you. Is there any other matter, Mr. Mayer?
MR. MAYER: No, my lady.
SHERIFF GIMBLETT: Mr. Mayer, can I just ask you one thing? I assume you would wish this to be Minuted, all that has happened, just for the avoidance of any doubt?
MR. MAYER: Yes, indeed.
SHERIFF GIMBLETT: Now, are we in a position to start?
MR. MAYER: Yes, my lady.
SHERIFF GIMBLETT: Nobody else has anything they wish to raise before we start?
Evidence for the Second-Named Accused, Francis Anthony Boyle
THE CLERK OF COURT: Would you remain standing, please?
THE WITNESS: Pardon me?
THE CLERK: Would you remain standing?
SHERIFF GIMBLETT: If it becomes uncomfortable for you to stand, would you please let me know?
THE WITNESS: Certainly.
MR. MAYER: I am certain the witness meant no disrepect, my lady. They sit down in America.
SHERIFF GIMBLETT: Yes, I am well aware of that.
EXAMINED BY MR. MAYER: For the record, sir, would you please state your full name? – Yes, my name is Francis Anthony Boyle.
And your profession? – I am a Professor of Law at the Univeristy of Illinois College of Law, and I have been a licensed attorney in the United States since 1977.
Thank you; again for the record, I would like to take from you please your academic qualifications? – Yes; I have studied international relations at the University of Chigago where I was elected in (inaudible) as a junior, graduated in three years. I went to Harvard Law School where I have a Doctor of Law (inaudible) and also at Harvard I studied international relations and I have a Masters Degree and a Ph.D. Doctor of Philosophy in International Relations (inaudible) from Harvard University.
Welcome to Greenock. Did you go through the same programme as other people we may be familiar with such as Dr. Henry Kissinger? – The Ph.D. programme I went through at Harvard also produced Henry Kissinger, (inaudible) Pujinski, the former national security adviser to President Carter. Kissinger was for President Nixon. Yes, I went through the same programme that produced these individuals.
Have you given expert evidence before? – I have. I have testified as an expert witness on nuclear weapons and international law several times in United States courts, State and Federal. I have also been qualified as an expert on international law in (inaudible) of War in United States military court martial proceedings; also in Canada too.
I think you have also appeared in the International Court of Justice? – Yes. I was appointed for the Republic of Bosnia and Herzegovenia — I was appointed their attorney and director at the law court by President Isobevich and filed the first genocide case at the World Court and won two Orders of Provisional Measures of Protection on behalf of the Bosnians from the World Court.
I think in fact you have also been honoured by the State of Bosnia? – I was. I was their lawyer during the war and extermination against them, and because of my efforts I was given Citizenship by their Vice-President and a diplomatic passport and visa and a Declaration of (inaudible).
Still on some background please, are you a specialist in the relationships between international law, political science and other things? – Yes, that is correct. There are not too many people who have both Doctor of Law and Doctor of Political Science from Harvard, specialising on the relationship between the two, and especially in the international field. There are only a very small number of people who have those qualifications.
I will come to some questions on those factors and their inter-relationships in due course, but can I also ask you if you are a member of something called IALANA? – I helped set this Organisation up.
What does IALANA mean? – It’s the International Association of Lawyers against Nuclear Arms, and I was involved in the first efforts to set this Organisation up, yes, ten years ago.
Did that Organisation carry forward an idea by a man called Sean McBride towards getting the whole question of the threat or use of nuclear weapons before a World Court?
MR. WEBSTER: My lady, at this stage I would wish to raise a point which I think should be appropriately explored outwith the presence of the jury and the witness.
SHERIFF GIMBLETT: Yes; Mr. Boyle, would you be kind enough to leave the court for a few moments while I hear submissions.
THE WITNESS: Yes, your honour.
SHERIFF GIMBLETT: Ladies and gentlemen, may I ask you to leave also.
At this stage the witness and the jury withdrew from court. [Click here to skip the legal submissions]
SHERIFF GIMBLETT: Yes?
MR. WEBSTER: I assume that now we should go back with the arrangement whereby everything is translated for Miss Roder word for word.
SHERIFF GIMBLETT: I think that would be appropriate.
MR. WEBSTER: Before I come to the point I wish to raise, I notice that there are a number of documents which are already laid out in front of this witness, and documents which may well feature in the matters that I am going to raise in this case, my lady, and I don’t know that these documents should be before the witness before we get to questions of the relevancy and competency of his evidence. One of these documents is headed “Legal Document and Treaty Contents” which I think may be a copy of a Defence Production in this case, and the other one I see is “The Criminality of Nuclear Deterrents” which has already been laid in out front of the witness, and I think the proper course of action once we decide the matters I am going to raise is that these Productions should be formally put by the Defence to this witness. I make no criticism of either the Defence or the witness because he is totally unaware of Scottish legal procedure.
My lady, the matter which I wish to raise at this stage is an objection to the relevancy of this evidence, and it may well also, depending upon either my friend’s response or at a further stage in his evidence if he is allowed to proceed, develop into an objection as to competence. This witness has been called as a Defence witness, as my lady is aware, out of turn by concession with the Crown and of course, when I acceded to that, I emphasised that he is not being called as a Crown witness, that he is being called at this stage as a matter of convenience so that because we understood that his evidence would not be available if he was not called today, and I did not wish, using a procedural device, to exclude that evidence. However, the question of the relevancy or indeed competency of his evidence is an entirely different matter, and my lady may recall that when I agreed to have him called as a witness out of order, I indicated that that did not involve any concession from the Crown with regard to the releancy of his evidence.
Now, my lady, in the first chapter of Walker and Walker on Evidence, on page 1 on the copy I have here, it says “Irrelevant evidence is never admissible, but even relevant evidence may be made inadmissible by one of the peremptory rules which the law prescribes”, now, my submission at this stage, and it may well develop as the argument develops, depending on the reply, is that the evidence of this witness as I andticipate it to be and as I read the question which was posed to him, that in effect this witness is going to be giving opinion evidence with regard to matters involving nuclear weapons and/or its relationship to international law. I think it is worth reiterating why we are here today. We are here because there is an indictment which charges the three accused with committing certain offences on the 8th of June, 1999 in Loch Goil in Scotland, and these are the charges, my lady, which at the end of the day the court, and indeed the jury under directions in law from my lady have to decide, namely whether or not the accused committed these offences at that place at that time. This court is not a talking shop or a debating chamber in relation to nuclear weapons, their use, threat, possession or otherwise, and I anticipate from the question and from the copy document which I have received from the Defence that this witness’s evidence, much of which is opinion, and I accept of course experts are entitled to give opinion, but of course the expertise must be relevant to the issues on the indictment. As I understand it, among the evidence this witness will be giving, and I don’t know what else he will give because I have only one certain document, is he will express opinions, and indeed seek to place interpretations on a judgment of the International Court, an advisory judgment. Even if that’s not the case, my lady, it is my submission that for his evidence to be relevant, it must be relevant to the offences which are alleged to have been committed on the 8th of June, 1999 in Loch Goil in Scotland. Now, as my lady will appreciate, other than the one document I have, which relates to a 46-page document which examines various parts of this judgment of the International Court, I don’t know at this stage what other questions he will be asked, and he may well later in his evidence be asked which may or may not be relevant, but I would submit ex facie at this stage, this witness is about to be asked about matters which on the face of it have no relevance to the indictment, and on looking at whether or not something is relevant, we inevitably have to look back at the charges on the indictment, for instance, if the Crown sought to lead evidence of what any of the accused did or didn’t do on dates and places outwith the indictment, the Defence would, I am sure, be quite entitled to object to the relevancy of that evidence, unless of course it was something which was relevant to the indictment such as — unless it’s something relevant to the indictment — if the Crown sought, or attempted to lead evidence of something which all or any of the accused were alleged to have done on a date and/or place not referred to on the indictment, the Defence would, I am sure, and be entitled to, object to that evidence on the grounds it was irrelevant. Now, of course, evidence of something that happened outwith the date may be relevant, for instance some Production which is seized in relation to the evidence subsequently being analysed, evidence of that clearly related to and relevant to the indictment, but what I submit to my lady is happening here, or is about to happen, is that this witness is going to be asked about matters about which ex facie have no relevance to the indictment. Now, my lady, of course I am in in a sense a no-win situation, because if I object too late the Defence could then say “Well, he has allowed this evidence to begin with and can’t now object to it”.
THE INTERPRETER: Say that again please?
MR. WEBSTER: The Defence may say that I am too late and I have allowed that evidence, or a line of evidence from the beginning, a particular line of evidence, and in a sense I have condoned it, allowed it, and can’t then take an objection. On the other hand, they may suggest, my lady, that the objection has come too soon. Now, of course I can’t object to the witness being called because I have acceded that it could be competent (inaudible). I can’t object to him giving his particulars, his experience, his CV, his expertise, because that’s no different from me asking a police officer “How many years police service do you have”, and “What has been your previous experience” to a photographer in relation to a scenes of crime, but it appeared to me that we had moved on from the witness stating his CV and starting to elicit evidence from him, and my objection is that the line of evidence which appeared to be initially taken was irrelevant, and of course, as I have said before, if I failed to object to it timeously then the Defence could argue that my objection was too late and that the evidence ought to be admitted. If at the end of the day my lady has a doubt on the matter then I would suggest the course would be, subject to hearing from my friends, that we have in effect, although it’s frowned upon, but it is competent, a trial within a trial. Where objections are taken for instance….
THE INTERPRETER: Can you repeat that?
MR. WEBSTER: I am suggesting to her ladyship if there were doubts on the matter after having heard my friends’ reply, and possibly myself in reply to that, that there is a competent procedure, namely that of trial within a trial if there is a doubt on the admissibility of the evidence. That happens on occasions where for instance the Defence challenge the admissibility of confessions….
THE INTERPRETER: Say that again?
MR. WEBSTER: That has happened on occasions where the Defence have challenged the admissibility of confessions said to have been made by the police to accused persons as being inadmissible, and the court, without hearing evidence on it, cannot reach a decision and cannot risk simply leaving the matter to the jury on the basis it might or might not be admissible As I said before, my lady, I am obviously (inaudible) in the dark other than the document which I have which, as I say, primarily relates to an opinion and a disertation on this judgment in 1996, and what may or may not be made of it. As I understand from what my friend across the table, Mr. Mayer, said yesterday, the Defence being advanced in this case is one of necessity. Now, again it is very difficult for me to anticipate what this evidence in one respect is going to be in relation to that, and I obviously don’t know at this stage the purpose of leading his evidence, but if his evidence is led for the purpose of intending to establish some link between the accused’s actions and the general international situation with regard to nuclear weapons, then of course my submission would be that that would have to be seen in the light of the cases on necessity, on which I will say more later if this argument is developed. If, however, alternatively, the evidence sought to be led from Dr. Boyle — sorry, Professor Boyle — is opinion evidence as to whether or not the judgment, subject to his own opinions on it, some of which, as far as I can see from the document before me, don’t entirely echo all of the court’s findings, then I would challenge the competency of that, because it is for the legal practitioners in a case to address the Bench on matters of law and thereafter for the Bench at the conclusion of the evidence to direct the jury as to how the law ought to be applied, and it’s for the presiding judge to decide upon any matters of law raised in the course of the case. In my submission, if that is the purpose of Dr. — sorry, Professor Boyle’s — evidence, and that is the evidence which is going to be developed, then in my view that is incompetent. It’s akin to the Crown for instance, calling the Lord Advocate as an expert witness in a trial on a particular matter to pass comment on a case or a judgment on an Act of Parliament and to seek to have his opinion placed before the court — assuming the court accepted the Lord Advocate as an expert — but placed before the court as a matter of evidence in relation to the particular interpretation on (inaudible) on a matter of law, a Statute, a case, whether the case would be (inaudible). I would say that’s particularly so if that evidence seeks to place a personal interpretation on that particular piece of law contrary to the actual wording. In a sense, my lady, it would be like if, instead of myself making this submission, I indicated “Well, the Solicitor General is more expert in these matters than I”, and calling him by means of evidence to make a submission on the defence, and calling the Dean of Faculty to make their submissions, and in my submission, certainly if the Crown attempted to do that, it would never be allowed. If that is the purpose of the line of Professor Boyle’s evidence, then I would submit that it is incompetent and inappropriate and it’s for counsel and solicitors to address the court on matters of law and thereafter for my lady to give such directions as she believes are necessary to the jury in applying that law to the facts of the case.
Going back to matters of relevancy and back to the indictment, if the Crown for instance sought to lead evidence of a senior member of the Armed Forces or a Government official minister with regard to the general position with regard to countries holding nuclear weapons, where and in what circumstances of threats of use would be appropriate, and again I understand that these are matters which are covered certainly in the document which I have, the Defence would object and say “Well, what has that got to do with the allegations against my client that on the 8th of June she damaged some property in Loch Goil, Argyll”, or effectively stole it by throwing it overboard? I wouldn’t say anything further at present, my lady, other than to say the baseline here is the indictment and the terms of the indictment, and on the face of it, what we are about to hear from the Professor related to a Organisation which he had set up to discuss matters of international law and their relationship to nuclear weapons. My lady, in my submission that is a million miles away from the terms of this indictment, and for that reason, and I obviously don’t know what is going to be said and why, but I would object to the relevancy of this line of evidence at this stage.
MR. MAYER: My lady, all of what my learned friend, the Fiscal, has just said is irrelevant, not what he supposes Professor Boyle’s evidence will be. I noticed that in one sentence my learned friend inserted three times the word “if” and arrived at his conclusion that Professor Boyle’s evidence was irrelevant and incompetent. Well, if I may be allowed to use the word “if” myself, if the learned Fiscal had taken his legal opportunity to consult with Professor Boyle, whose name has been on the Defence list of witnesses since the continued first Diet, at which both he and I were present, then he would know what Professor Boyle’s evidence is likely to be; he wouldn’t have to suppose. His whole submission was ill-conceived because it was based on supposition, not on what I call an objective understanding. I agree with my friend that all matters of law, so far as the jury is concerned, are entirely in your ladyship’s hands. However, there are often cases where, to use the Scots’ vernacular, “The Sheriff Court disnae ken”, doesn’t know, the law. That is presumed to be the case for instance where there is an issue of, let’s say, English law, and it would be remiss of those relying upon that foreign law not to lead their expert to inform the court, and perhaps the jury, what that law was. The Defence begins in what our highest judge, Lord Rodger, has described as necessity, but it develops. There’s a lot of different kinds of necessity, and it results in this case in the legal defence of reasonable excuse.
THE INTERPRETER: Excuse me? Could you paraphrase that?
MR. MAYER: The ultimate defence is reasonable excuse, a concept well known and well understood to these courts. It has already been made abundantly plain that the Defence do not rely upon any kind of emotional basis, but they do rely upon their objective understanding — I go a little further than I have gone before in this line — and say that that understanding is that they have a right, not a duty, a right, to take action in order to prevent what the law calls greater harm and what might be called catastrophe. My learned friend, the Fiscal, said that Professor Boyle would primarily speak about the International Court of Justice’s advisory opinion. That’s wrong. He will include it, I have no doubt, if he is given the opportunity, but it’s not what he will primarily be speaking about. It’s the chronological date and time — it’s the chronological result — one might think a very important one — of a long line of legal development. It is sought by me as my witness to have the Professor give his, and his alone, opinion on that long line of legal development, together with the way in which what one might call broadly “the political science” has developed over the same period of time, and if I can describe those two things as the two columns or pillars of what he will speak about…..
THE INTERPRETER: Sorry?
MR. MAYER: Most importantly, he will speak about their relationship. It is no part of my intention to usurp the function of this or any other court. My client and her co-accused rely upon the complete and determined independence and sanctity of the law provided in this court. They do not seek to take the law into their own hands and provide the jury with their own judge. The intention I have is to use Professor Boyle’s evidence, albeit out of sequence, as a supporting witness for my client. He is one of a number of supporting witnesses, and that’s his only function. What does he give support for? Well, because my client has not yet had the opportunity to give evidence, and I have to meet the objection now, I have to tell the court he will provide, I trust, support for my client’s whole understanding of the Scottish and international situation, to put it at its broadest, here and now, or on the date and time and place mentioned in the indictment, and support her plea to the jury that she did not act, as the indictment says, maliciously. If that is the case, the jury accept that, then they must acquit her.
My friend, the learned Fiscal, said that this is no talking shop or debating chamber. At the risk of repeating him, if what he means by that is corner shop or academic institution, he is correct, but as I have said, and as we have heard from the police in evidence, it’s the accuseds’ position that they wish to explain themselves to a jury in an independent court of law under the rules of the law. Your ladyship can tell that I am less kind-hearted today towards my friend, the Fiscal, than I have been on other occasions.
SHERIFF GIMBLETT: I hadn’t noticed that (inaudible).
MR. MAYER: Well, that’s as may be, but it bears repetition that if he had consulted with the Professor, then his view may well have been a very different one.
SHERIFF GIMBLETT: To be fair, I don’t think he has had very much time, and given his engagements that might have been difficult….
MR. MAYER: That’s fair enough; that’s fair comment, my lady. However, the resources of the Crown perhaps could have stretched to someone contacting the Professor, and given that he is a very lucid man, the Professor might have been able to explain what his evidence might have been in a few minutes.
The nature of the offences on the indictment reveal, and the evidence thus far certainly does, that the actions — I shall not call them crimes — mentioned on the indictment relate specifically to certain activities of Her Majesty’s Government. The Fiscal cannot get away from that. He cannot simply say “Read the black and white letters on the indictment and treat this case like any other common vandalism case”. Even if I am wrong about that, and the court decides — this is on the indictment — I read the indictment — I see malicious mischief; I see allegations of disruption of property. Courts around Scotland see this day-in and day-out. What’s special about it? It could be said to be nothing, but it is for the Defence on every particular occasion to mount a defence as they see fit within the law towards meeting the indictment.
Reasonable excuse presents when charged on a statutory basis regarding a Summary Court might amount to five minutes or so from a particular witness and a little from the accused themselves, perhaps. I stand corrected if I am wrong, but from experience as a Procurator-Fiscal myself all over the country, 99 per cent of these are refutes.
THE INTERPRETER: Excuse me? The Procurator-Fiscal?
MR. MAYER: The prosecutor. But when matters become so serious as to warrant indictment, sanction for counsel, and preparation albeit in a made rush, involving lists of witnesses which reveal experts from Scotland, England and wider afield, it might be anticipated by the court that the reasonable excuse defence might last a little longer and be a little more complicated than the Summary situation. That’s all that’s happening here. I wouldn’t dream of asking Professor Boyle whether in his opinion these women were guilty or innocent. That would usurp the function of the court. What I do seek to arrive at with Professor Boyle is his opinion, and having heard some of his many qualifications, the court may take the view that he is qualified to give this opinion, on whether the accused had certain rights to do that which may be proved by the Crown. I don’t say duties, my lady. I accept there is no duty lying upon all of us, whether moral or legal, to drop wigs and gowns and run to Loch Goil to take certain action. There may be a right to do so, and if there is a right, then that’s a different matter. That right will be part of the whole objective framework which I am at risk of mentioning ad nauseam.
Your ladyship will see that on the list of Defence witnesses there appears the name Oafpanza. He is a serving residing judge in Hamburg, and Rebecca Johnson, who is a distinguished academic in an English University in the field of what very modernly, if that’s the word, called “Peace Studies”. Those names appear as part of the intention to build in front of the jury this framework. There is no intention on the part of the Defence to bamboozle, hoodwink, trick the jury into bringing any particular verdict. There are thousands of names which could have been placed on the Defence list of witnesses to speak to the defence being mounted here, but the few names which have been chosen, and carefully chosen, to what’s thought of being the most succinct way of doing this.
My friend, the Fiscal, mentioned that the solution might be a trial within a trial. I wouldn’t wish to take your ladyship through authority. It may be within judicial knowledge that Michael Bruce, Q.C., as he then was, now Lord Marnoch, ran the last trial within a trial in the law of Scotland in the case of the first big drug importation case. That was McNeil and Others. It’s not thought, as Lord Hunter said in that case, that it is a practice which should continue in the law of Scotland, and to my knowledge it has not continued.
THE INTERPRETER: What does that mean?
MR. MAYER: It’s a practice which is defunct. The practice, my lady, is that evidence is either admissible or inadmissible at the point of leading it, so so far from being a million miles from the indictment, it is absolutely essential to the Defence to meet the terms of the indictment that Professor Boyle can be allowed to give his evidence.
MR. McLAUGHLIN: My lady, in my submission there is no need for a trial within a trial. Obviously having Professor Boyle here beyond today would create one problem. However, from a legal point of view I would say that it is unnecessary and that my lady can determine the matter without recourse to that procedure.
My lady, to state at present, it is no part of my defence to argue necessity. The defence that I am advancing to this court is reasonable excuse, that is the absence of malice, and referring to the terms of international law. However, there is no problem, for the avoidance of doubt, with the competency and relevancy of this witness in my submission. In short, my lady, my understanding is that this witness will say that in his opinion Trident 2 as opposed to just nuclear weapons in general, but Trident 2 is de facto illegal. It cannot be used for a legal purpose, and to use the rubric, if it’s unlawful it’s not legal, and if it’s legal, it’s not (inaudible), and that comes directly from the (inaudible) Court Project. So, my lady, my friend the Fiscal focuses in on the indictment and he is correct to do that. The indictment has the word “maliciously”, and it is the defence here to establish that there is no malice. (Inaudible) which takes away any malice, but although he is taken out of sequence, it is anticipated that the accused will give evidence that amongst other motivating factors that brought them to engage in this activity, Professor Boyle was one of the main ones, others being International Treaties and at the very end the International Court of Justice.
My lady, my learned friend may have perhaps in my submission referred to the World Court, the ICG, too quickly, and perhaps a more fuller background pertaining to Professor Boyle ought to be read before the court, in particular proper questions such as the articles and books that he had published, whether they dealt with nuclear weapons policy, whether he in his research had occasion to investigate the issue of the legality of nuclear weapons policy, the legality of Trident 2 which is in my view, my lady, a critical distinction in this case; the policy pertaining to targeting of nuclear weapons; the expert material that he has relied on, and the strategy (inaudible) are connected to nuclear targeting of Trident. He has in my submission, although it may not be clear yet in evidence, an unrivaled expertise in that area, and then he would speak about international law in general and its place within domestic law, and also Trident 2 in relation to international law, so he would at this point, my lady — I gather that in relation to the competency argument it is rightly contended that the function of an expert witness is to assist the court of the facts to come to a decision on the main issue presented to it, and not to make that decision for the Tribunal. However closely tied up with the outcome of the case the evidence of the expert may be, a clear distinction must be maintained between the expert’s role as a guide to a specialist area, and the role of the Tribunal as the ultimate arbiter of fact. My lady, in my submission there is no attempt here to usurp, to use my learned friend’s second strand of competency, the function of the court, but what at the end of the day the defence will be, my lady, is that without Professor Boyle’s evidence there can be no objective framework; there can be no reasoning or understanding as to why there is no malice in this case. My lady referred earlier on in the proceedings of a recent Appeal Court case and in that, Lord Coulsfield giving the judgment stated that counsel did not refer to any line of authority or reasoning to support a proposition that the possession of nuclear weapons was criminal. Indeed, they were not referred to the Treaty; they were not referred to international law. In my submission, my lady, in the case of (inaudible) they were referred to nothing of any moment. There was a confession made in that case that the ICG opinion does not hold and that it is contrary to international law for a (inaudible) to possess nuclear weapons. My lady, this is the first opportunity in these courts where that position will be disputed, because my understanding is that it is the evidence of this witness that Trident 2, specifically Trident 2, is illegal in international law.
At the end of the day, my lady, it all goes to the make-up and motivation of the accused. So therefore it is a relevant factor to be considered in these proceedings. It helps to explain what they did and why they did it, so far be it, my lady, from this court being used as a talking shop, in my submission it goes to the seminal, critical point in this indictment.
ACCUSED ZELTER: I consider this witness to be competent, relevant, and absolutely essential to my (inaudible). I am just an ordinary woman, an ordinary lay person. I could maybe go up into the witness box and say this is what I believe international law to be. I need this witness to come as an international law lawyer and explain international law, otherwise I shall be dealt with in exactly the same way as I have been dealt with in every other court; that I am a well intentioned, ethical, thinking person, that I don’t have a right to try and prevent my planet from being destroyed. I want this witness to be able to give his evidence and show that we actually have a whole body of international, humanitarian law here that protects all of us as innocent civilians.
I would like to say that I have been very, very impressed so far with the way in which this court has proceeded and (inaudible) that everything has been very, very fair, and I have welcomed in and thought at last the arguments are going to be heard, and I would just like to plead with you that this witness is allowed.
SHERIFF GIMBLETT: Thank you very much. Mr. Procurator-Fiscal, I am wondering, especially given the short time that you have had to consider this matter, and I’m sure Mr. Mayer will forgive me if I say this, but I do think his comments were a little harsh and perhaps he has agreed with me to an extent, but given the arguments which have been put forward, and I don’t know how much time you have had to prepare, would you like five minutes, ten minutes or so, before you wish to reply, or maybe you don’t wish to reply?
MR. WEBSTER: I do wish to reply, my lady, yes.
SHERIFF GIMBLETT: Yes, I thought you would. Do you wish to reply immediately, or would you like a short break? It is after all
25 to 12.
MR. WEBSTER: I would like a short break, my lady, in case it is a fairly intensive debate.
SHERIFF GIMBLETT: Yes, I do appreciate that. Now, I am going to say, however, that it is short because if I decide, and I haven’t decided yet, (inaudible) all the argument, I would like a little time, I may say, to think myself, then obviously if I decide in the Defence favour on their request, then the quicker we start with Professor Boyle, the better. So how long would you like?
MR. WEBSTER: Five minutes would be sufficient. My lady, I think it’s better to deal with it at this stage rather than me continually objecting to questions. If my lady gives an indication, if she can, at the end of all the legal arguments, what your view is, we can then, if my lady allows the witness’s evidence, then unless there are any questions which are obviously in terms of Scots law objectionable, then hopefully we would then have a continual flow of evidence, because the one thing I don’t want to be doing is to have juries up and down every five to ten minutes.
SHERIFF GIMBLETT: Yes. I think if I am going to allow it, it will be the whole evidence and then I will obviously have to have the difficult job of addressing they jury, that’s if I am going to allow it, but I haven’t made up my mind, so we’ll adjourn for five, ten minutes for everyone to have a break and then I will hear you prior to making a decision.
MR. WEBSTER: I’m obliged, my lady.
After an adjournment.
SHERIFF GIMBLETT: Please sit down. Just before we start, I understand you may have a problem. I am aware of it, and should you need to adjourn for any reason or (inaudible) help may be on its way, would you let me know?
MR. WEBSTER: My lady, I am conscious of the need to be as brief as I can because I don’t want to seem to be prolonging things, given the Professor’s evidence has to be heard today.
SHERIFF GIMBLETT: No; as this is a matter of some importance, I wouldn’t wish to curtail you in what you have to say.
MR. WEBSTER: As my friend said, and I don’t wish this as in any way a criticism of him, but he said that on repeated occasions I used the word “if” but it would appear from what my friend says that part of the witness’s evidence does indeed refer to the 1996 Judgment of the International Court, and it would appear also that I was correct in anticipating that at least some of his evidence would relate to the applicability of international law. My friend drew the analogy of a case proceeding before a Scottish court involving English law, and perhaps the need to have an expert witness. My answer to that submission is it would nevertheless be a matter for the practitioners in the court to acquaint themselves with the law and its applicability, and then to address the court thereon, and that’s why I fall back on my earlier argument that in effect, and I am not saying that the Defence are doing this for any ulterior motive. I accept it’s in totally good faith that they take the view that this evidence is relevant and necessary. The only dispute which we have is whether or not that is an erroneous or a correct opinion.
In my submission, there is no difference between the Professor giving an opinion on international law, and as I said before, either parties, instead of addressing the court on Scots law and leading a Scots law expert on how the law should be applied.
THE INTERPRETER: Can you paraphrase that?
MR. WEBSTER: I am again conscious of the need that we would need maximum time for the Professor if his evidence was allowed. What I have said is that you can draw a parallel effect between in my submission this witness being called to give opinion evidence on the applicability of international law and either party leading an expert witness on Scottish law, which in my submission is incompetent and should appropriately be done by those around the table addressing the court on the matter, and it would be perfectly competent of course for my friends, having consulted Professor Boyle, if they felt it appropriate in the course of submissions in the case to act upon his opinions. I don’t want to labour this point because I think my lady knows the point that I am making, and as I say, when I suggest (inaudible) again I wasn’t in any way critical of the Defence, suggesting there was any ulterior motive. I accept their submission to the court that this evidence is relevant in the genuine belief that it is relevant.
My friend, Mr. Mayer, referred to the defence of the Second Panel as being necessity, as I understand it, which results and develops into a legal excuse of reasonable excuse — sorry, a legal defence of reasonable excuse. A reasonable excuse of course was a defence in the case of Helen John because it was a statutory offence in which the drugs appeared. As I understand the Scots law on necessity, if established, it’s a complete defence opposed, I suppose, to being a separate defence of reasonable excuse, and the reasonable excuse is the result of a necessity being established.
THE INTERPRETER: That last part please?
MR. WEBSTER: My suggestion to my lady is that necessity, if established, is a complete defence which perhaps in effect results in a reasonable excuse as opposed to reasonable excuse being a defence in itself.
The Scots law with regard to defences of necessity, most of which relate, I think, to road traffic cases, the leading case on that, McNab v. Guild, which was (inaudible), is that if a defence of necessity is to be advanced, it could only be made out where at the material time the Appellant was in immediate danger to their life or serious injury. I accept that that is extended in one of the later cases if a third party is at the material time in immediate danger to life or serious injury. McNab v. Guild is 1998 — sorry SCCR at page 138 and reaffirmed in Moss v. Howdell, 1997 SCCR at page 215, and also McLeod v. McDougall, 1988 SCCR at page 519, where at page 524 the court said “We are satisfied by the time the offence was committed by the Appellant that he was not under any necessity to drive”. They continued that “By that stage, when the offence was committed, any necessity had ceased to operate”, and I would suggest to my lady that the ratio of these cases is this defence can only be made out where at the material time there was a material danger either to life or the severe injury to the accused or a third party.
Now, I noted that my friend in relation to Professor Boyle’s evidence indicated that he would be giving opinion evidence on the long line of legal development together with the way in which political science has developed over the same period of time, and I would submit that that is in shart contrast with the Scots case law which refers to the immediacy at the material time, although this is perhaps a matter which can be explored later in terms of legal submission, but if at the end of the day the defence is along the lines that we acted out of necessity because there’s a possibility that at some time in some unspecified place some person in the future may be injured or killed or whatever by some kind of nuclear device, and of course that could be a device which has nothing to do with this country (inaudible), to equiperate that, that’s to compare or set alongside that with the various decisions in Scots law in relation to the defence of necessity would in my submission be like saying, using the example of the allegation of drunk driving, “I am entitled to drive home in my car even though I am over the limit because there is a possibility, however remote, that I may be attacked and injured if I walk home”. The problem in my submission is that evidence of the development of law and political science, I have difficulty seeing the link between political science development and what happened on the 8th of June at Loch Goil, is in my submission irrelevant to the matters referred to on the indictment and in particular irrelevant to a defence of necessity on that date, as the defence of necessity has been interpreted by Scots law, and with regard to the various points made by my friend, Mr. McLaughlin, in effect I revert to the earlier argument of competency, that what in effect we are having is a witness, however expert, giving evidence on matters of law which are a matter for legal submission by the parties. Again, my lady, I am conscious of the time and I am conscious that nearly all the parties wish to answer these points. I am obliged.
SHERIFF GIMBLETT: I have thought about this quite considerably and I have also considered the authorities which you have mentioned, Procurator-Fiscal, and other authorities which deal with the whole question of malicious mischief, and I agree with you, Mr. Procurator-Fiscal, that perhaps the whole development of law may not be relevant. It may be helpful to have the general background if this can be done briefly, but what I need to be satisfied on is the question, as you rightly say, of the immediate necessity at that time to protect one’s self and both parties, and in this particular case, given the very unusual nature of the case, I would wish to hear expert evidence of such necessity, if it exists. There is also another matter which concerns me, and that is the question of whether the various accused had a right under law to do as they did. It seems to be that a belief that they were acting according to the law, no matter how sincere, is not sufficient, and there are cases to that effect. However, in this case I think it goes a little bit beyond that. Counsel has referred to the case which went to the Court of Appeal recently, the case of Helen John, and I have of course read the decision which was made available to me, which I think is a very full decision rather than an abbreviated decision. This present case, I think, can perhaps be differentiated from that case because at the trial there was no real evidence of international law and although in their opinion the High Court stated that they had seen the opinion of the International Court of Justice, that’s the advisory opinion, and they noted in arriving at their decision the court took account of customary international law and humanitarian law, as well as of the Charter of the United Nations, and relevant international convention, we do not know what their opinion would have been. In fact they had heard expert evidence on the whole matter, and they go on to say on page 4 of their opinion that counsel could not refer to any line of authority or reason that the possession of nuclear weapons was criminal by Scots law, so it seems to me that they were working to an extent (inaudible) in a sort of vacuum. Now, as a Sheriff in a lower court, I am bound by what is said in this case and that will probably and certainly be reflected in any charge to a jury, as will the rest of the law pertaining to these charges, but if this case goes to appeal, as I am almost certain that it will, then I think it is perhaps right that an expert’s evidence on international law on the whole question of nuclear weapons as it relates to Scots law is before the High Court, so that with all the knowledge they can make a decision which may be against me, against the accused, and against all the expert opinion. I do not know, and in making this decision I am conscious of the accused’s rights to a fair trial, that all information should be placed before me because if they have a right in law to oppose something which is illegal then that may put a totally different complexion on that appeal, so looking further ahead than just the outcome of this trial, and any charge that I may make to the jury, I think it right and proper that I do hear the evidence of Professor Boyle and any subsequent expert witness who may be led by the Defence on the question of international law and necessity at the time the actions of the accused took place. I am not going to allow evidence to be led except in the briefest of detail as to the history and development of the whole of the peace movement, if I can put it that way. That of course would be irrelevant but in the peculiar, i.e. special circumstances of this case, I am going to allow the expert evidence concerning law, and if he is able to give it, or any other witness is able to give it, of necessity at the time, not in the past, not now, but at the time the actions took place.
Just before we start, ladies and gentlemen of the public, I do appreciate that you have really been very quiet and very unobtrusive throughout this trial. It is always difficult for any witness when giving evidence if people are coming and going out of the court, no matter how quietly, and it is also difficult for a jury to concentrate, and myself, and indeed the Crown and Defence agents. In the case of an expert witness, it can sometimes be even more disturbing especially if they are talking about matters which are complicated and require, if I can put it this way, a lot of brain power. May I ask if anyone is likely to have to leave before 1 o’clock that they leave now so that there is the minimum of disturbance, and if you are sitting, can you please keep very quiet?
The jury and the witness returned to the court.
SHERIFF GIMBLETT: I’m sorry we’ve kept you waiting so long, Professor Boyle. May I remind you that you are still on oath? If jetlag is catching up with you, please do not hesitate to sit down.
THE WITNESS: Thank you, your honour.
EXAMINATION CONTINUED BY MR. MAYER: I would like to continue for a moment, Professor, with your qualifications and background and then lead you, if I can put it that way, into some very specific questions. Can you tell me how many books or articles you have published on the subject of international law? – About five books and I don’t know — about 59, 55, articles, major articles, and some smaller ones.
Thank you; in 1983 did you lecture to the United States Military Academy at West Point to their senior conference on nuclear deterrents and international law? – That’s correct. The Military Academy at West Point is like Sandhurst here, I believe, a heavy
conference on nuclear deterrents, and they had 200 of the highest level US Government officials there to hear professors and experts talk on the subject, and I was invited to speak on the subject of nuclear deterrents and international law, and in the audience I had the (inaudible) General in charge of law operations at the Pentagon, the Special Assistant to the Secretary of the Air Force for Nuclear Targeting, and the Head of the Defence Nuclear Agency which was in charge of developing US nuclear weapons policies.
A distinguished audience? – Some experts as well.
Please answer my next question “Yes or No”. Have you also lectured in the Soviet Union? – I did, on nuclear weapons and nuclear deterrents and international law.
Thank you; you will no doubt be familiar with the concept and definition of a crime against humanity. Could you please explain that in lay language please? – Yes; this goes back to the Nuremburg Charter, judgment, its principles, and I was recently reading the opinion of the House of Lords in the Peter Shay case where the Chief Law Lord stated that the Nuremburg Charter judgment and principles apply here in the United Kingdom, in the U.K. now, as is true in the United States, and this was developed to deal with Hitler’s attempt to exterminate the Jewish people and other people he believed to be inferior, Slavs, gypsies, homosexuals, and tied into it is the Nuremburg concept of (inaudible) war crime which for our purposes most importantly includes the (inaudible) devastation of a city (inaudible) district.
You mentioned the Nuremburg Charger and Nuremburg Principles, I think? – Yes.
If I can, I will just refer to those as Nuremburg, if I may? – Yes.
Did Nuremburg not only outlaw the actual killing of people, but did it go further into the planning and support mechanisms which that would involve? – Yes. As you may know, the United States and Britain were the formal supporters of the Nuremburg law, the Charter, the judgment and the principles; indeed, the Nuremburg Charter was signed in London in August of 1949 and it’s known as the London Agreement, and in addition to (inaudible) offences, such as crimes against humanity and war crimes and crimes against peace, it also criminalised what we lawyers call (inaudible) offences, namely planning, preparation, conspiracy (inaudible), and the reason that certainly our two Governments, the British and the American, put these principles into the Nuremburg Charter (inaudible) the principles was to prevent and deter future such conduct so that you would not have to wait until six million or ten million were dead before you could prosecute, but rather you could act when State or Government officials (inaudible) the planning stage or the preparing stage.
When you say you could act, who do you mean? – Well, those people who believe that such conduct is going on.
So first of all you would have to have some idea that such conduct was going on. That would have to have a reasonable basis presumably? – Yes, I believe that is the case. It would be very similar to the common law right in Britain and the United States to prevent the commission of crime, yes, but you must have a basis to believe the crime is going on.
Now, let me ask does the “you” that you mentioned extend down to the ordinary citizen? – Yes. The Nuremburg and also the Tokyo prosecutions for Japanese war criminals made it clear that these principles of law applied not only to military personnel, Government officials but all citizens. All citizens are bound by these principles of law, yes.
You say “bound”. I want to be very clear whether in your opinion whether these 15 people right here have at the moment an obligation to leave the jury box and go and do something about it if they have this knowledge and understanding that let’s say a war crime, which you have not yet defined, is about to happen, or whether they simply have the right to do it and they can do something if they want to? – Well, of course, it would all — I have never met you before and it would all depend upon your knowledge, your judgment, your experience, education, and what you know, what you believe is going on, but certainly you believe if there is a war crime about to be perpetrated and have a reasonable good faith belief, you would have a right to try to stop that war crime.
So it’s not an obligation? – Ordinary citizens would not — the source of the obligation must come from somewhere else. Certainly if you are a Government official in the chain of command, yes, that was established at the Toyko war crimes prosecution where the Japanese general had committed attrocities in the Philippines, that if there is someone subject to your control even about to commit a war crime, then you must act to prevent that war crime.
Now, let’s be very clear. Have you just drawn a clear line? On one side lies the general public and on the other side lies Government, military, and all those in the public sector, if I can put it that way? – I would be careful saying a clear line. The obligation for those in the Government comes from the Government position.
Yes, and so for instance, is this to get away from the Nuremburg situation where the foot soldiers who may have come in and there’s clear evidence that they shot say 30 or 300 people through the head and they would simply say “Well, somebody else up the line told me to do it”? – That defence was rejected at Nuremburg and by agreement even with the U.K. Government.
And is that why members of the military have let’s say a responsibility to stop a superior from committing a war crime? – That is correct. In the Vietnam War there was a warrant officer by the name of Hugh Thomson who had grounds to believe that Lieutenant (inaudible) was committing a massacre of civilians at (inaudible), and Hugh Thomson threatened to kill Lieutenant (inaudible), his superior officer, if he did not terminate the massacre of the civilians. The United States Army later gave Hugh Thomson a medal and then just recently another medal on the 30th Anniversary of the massacre in July, because he acted to prevent war crimes, future war crimes, by his superior officer.
Thank you very much. Now, am I right in thinking that these principles which you have been telling us about have been incorporated into later international documents like the founding document of the United Nations? – Yes, there are — the United Nations Charter technically came before the Nuremburg prosecution, but some of the same principles were formulated at the same time (inaudible) so you have the genocide convention. The Council had mentioned the crime against humanity and that was later codified from Nuremburg into…..
What’s codified? – Turned into a formal Treaty that would apply to all states of the world, and this was the basis of the (inaudible) Bosnia at the World court that (inaudible) the Air Force committing genocide against the Bosnians.
Thank you. So once these principles which the Allies established at Nuremburg and signed in London was spread out across the world, if I can put it that way, into the UN, do we then come across some more particular treaties which focus in on particular issues? – Yes; there were the (inaudible) Conventions of 1949; the Genocide Convention of 1948. The U.K. is a party to all these treaties; the Geneva (inaudible) of 1977 that the U.K. recently became a party to — those are the most important treaties that would be relevant here.
Thank you very much. Some of the ladies and gentlemen, my lady, are trying to write these things down. These documents of course form No. 14 of the list of Productions for the Second Accused which of course the ladies and gentlemen are entitled to see them whenever they please. Now, you mentioned these four particular conventions. Could you in short compass please tell us what these were designed, as we lawyers say, what mischief were they designed to alleviate? – Well, again it goes back to the Second World War and the Nazi attrocities that were afflicted as the (inaudible) throughout Europe and here in Britain, and the Second World War, the Nazi attrocities, the Japanese attrocities, demonstrated that there were gaps, wide gaps, in the coverage of international law to prevent this type of behaviour again, so that was the precedent and the model to deal with mass extermination of human beings, war crimes against civilians, extermination of people because of their race, religion, nationality, and things of that nature.
Thank you. Now, am I right in thinking that the splitting of the atom and the development of the science which that produced led to the production of nuclear weapons? – That was originally why this was undertaken, this letter by Einstein to President Roosevelt stating he believed there was a potential for a weapon, and this led to a crash programme to develop such a weapon before German scientists might do the same.
Well, we in fact have a witness who has taken lectures from Einstein called to court and we will hear from him on that. Alongside these principles which were applicable internationally, am I right in thinking that there developed the science of nuclear weapons? They got refined? – The weapons?
The weapons became refined? – Well, there is an interesting point here in that the development of the atomic bomb as opposed to the thermo nuclear bomb, was done completely in secret, and the only people who were aware of that were the scientists and very high level officials in the United States, and there was no real attempt made to relate that development to the principles of international law in existence at that time. However, after the War, when the United States Government decided to develop a thermo nuclear bomb — the bombs at Hiroshima and Nagaski were simple atomic bombs — with a thermo nuclear device that when you start with an atom bomb and then use the process of fusion to create an enormous sized explosion, and again something like the Trident warheads are all thermo nuclear bombs, many US scientists quit because they took the position that a thermo nuclear bomb could only be used as a weapon of genocide, and genocide had already been prohibited, and they wanted nothing to do with the development of the thermo nuclear bomb.
So the Government was continuing with this programme. These peopole took the view, and as scientists they may have the ability to rationalise the matter — that in fact the Government programme was illegal? – And criminal, that is that genocide is not just illegal, it is criminal, and even though many of these scientists had been involved, or most of them had been involved in the original development of the atomic bomb, they felt that the thermo nuclear bomb could only be used as a weapon of genocide. It had no legitimate reason at all, and so many of them quit.
Well, that was then and this is now. In your opinion, focusing on Trident 2, if I may, are there any circumstances where the possession, the threat of use, or the actual use of the kind of warheads used in Trident 2 — are there any circumstances in which these can be legal? – I do not believe so. I agree with the scientists who quit with the development of the thermo nuclear device. This is 100 kiliton warheads on top of Trident 2s, eight, nine, ten times the size of the bombs and Hiroshima and Nagasaki — I simply do not see how they can be used in a lawful manner.
Why not? – They are mass indiscriminate weapons. They just obliterate anything within an enormous area. The Geneva protocol one to which the United Kingdom is a party, requires discrimination in the use of weapons. You must use discriminate weapons. You must use discriminate tactics, you must discriminate between civilian and military targets at all times.
But we hear of co-lateral damage all the time. What’s wrong with nuclear weapons doing co-lateral damage? – Well, this goes back to the Nuremburg Charter. The Nuremburg Charter clearly said that the (inaudible) devastation of a city is a war crime, and that was the criteria we applied, both the United States and the United Kingdom, to the Nazi war crimes, and certainly even the use of Trident warhead, 100 kilitons on a city, which is where they are primarily going to be used, will (inaudible).
How do you know? – Well, my study of (inaudible), it does appear that certainly again, as I understand it, here in the U.K. most of your Trident warheads will be used on (inaudible). Even one warhead could kill hundreds of thousands of people, perhaps millions; we have no idea, but clearly this is an indiscriminate weapon of war. It would result in the (inaudible) devastation of a city, and that has been criminal since at least the time of the Nuremburg Charter of 1945.
You keep talking about “indiscriminate”. Is that the key word? – Well, there are many other principles we could analyse too. (Inaudible) in human weapons are generally prohibited, weapons that inflict lingering suffering say by radiation are also prohibited, but with respect to the Trident 2, the main problem as I see it from a legal perspective is the mass and indescriminate nature of the weapon and the fact that the weapon is probably going to be used, most probably going to be used against cities. Now, the claim is while there is a miltary target in a city, that you cannot justify the (inaudible) devastation of a city by saying that there is this military target in there.
Thank you? – And that is what Trident 2 will do.
Thank you. Now, supposing I were able to put together the bits of wire, metal and so on and build a Trident 2 nuclear submarine and arm it with live 100 kiliton warheads, 48 of them per submarine, I understand, supposing I were able to do that, would my mere possession of that Trident nuclear submarine, which would have to be in my very large back yard, would that be legal, mere possession, that’s in my back yard? – Well, the Trident 2s are in your back yard! They are (inaudible). What we have here is a case of a weapon system, the Trident 2, that’s armed, equipped, supplied and prepared to attack in about 15 minutes when they set out at sea, and as you know, Trident was given — the system was given by the United States to Britain so we have a lot more experience with these over in the United States.
You mean we got them from you? – Yes, that’s right.
Thank you? – And some of the missiles are not technically owned by the U.K.; they are only leased.
We rent them from you? – That is correct.
Okay? – These weapons systems are ready to go to war, and when they deploy from the bases, are on a war (inaudible).
A serious point, Professor; have you seen for instance the British Government Strategic Defence Reviews over the last few years? – I have not read those. I have read excerpts of them, but I have not read the reviews by the British Government. I have read those by the American Government.
Well tell me this — is it your understanding that when Trident nuclear missiles are in the water with their live warheads ready to fire them, remembering how incredibly huge they are by comparison with Heroshima, that in that condition they are not there for fun; they are at war? – That is correct.
MR. WEBSTER: I object to that, my lady, this is way outside the matters which…..
SHERIFF GIMBLETT: Yes.
MR. MAYER: I will withdraw that question, my lady.
MR. WEBSTER: We are concerned about matters of international law, as I understood my lady’s dictat.
SHERIFF GIMBLETT: Yes.
MR. MAYER: Yes, I am obliged to my friend. Right, what’s illegal about the way in which the British Government possesses its Trident 2 nuclear submarine? – The World Court rendered an opinion on the legality of the threat and use of nuclear weapons in 1996, and the World Court unanimously ruled on this point that a threat to commit a crime with respect to nuclear weapons is itself illegal.
I am talking about merely possessing one. What’s wrong with the way in which the British Government possesses its nuclear weapons? – Well, they are not just possessing. They are threatening to use them, and that is the whole purpose on the theory of nuclear deterrents where you threaten to use these weapons of mass extermination in a highly credible and immediate fashion. In the British case they could be launched in say under 15 minutes, and the same is true for the United States, and in the advisory opinion of the (inaudible) report, they answered the question they had been debating for many years by professors of international law. The United States Government and the British Government had taken the position “Well, it might be illegal to use these weapons, but it’s not illegal to threaten to use the weapons, and all we are doing when it comes to deterrents is threatening to use the weapons. We are not actually using them ourselves”, and the World Court unanimously ruled that if the use of the weapons is illegal, the threat to use those weapons is also illegal, and that is based on Article 2, paragraph 4 of the United Nations Charter, and it clearly prohibits both the threat and use of force.
We are members of the UN. We are on the Security Council of the UN. How can that be right? – That is correct, and the United States Government is too, and I think the (inaudible) certainly in the United States — I can’t speak at great length here in Britain — is because the development of nuclear weapons has always been done in secrecy without accountability to the American people, and certainly without the approval of any lawyers to actually have a look at what are these weapons and (inaudible) that are being employed, for example, when the decision was made to use the atomic bombs at Hiroshima and Nagasaki, lawyers were not involved in this decision. It was basically made by scientists.
Are you telling me that there has grown up as the Century has developed a culture of understanding of these things among ordinary people that was not there when these things were initiated? – Well, when they started (inaudible) didn’t know about nuclear weapons, so there was no democratic — it was wartime in fairness. It was the Second World War. The American people did not know about this, the British people; even the American Congress — very few members of Congress knew about this. Even Vice-President Truman didn’t know about it until…..
The Vice-President didn’t know? – Until President Roosevelt died, and then he was informed. So the problem with nuclear weapons from the very beginning is the secrecy, the absence of democratic accountability, and this has been under the exclusive control of the scientists and the military people without running these things by lawyers. I take it that one of the reasons that they invited me to West Point to speak to these people, as to what are the legal obligations with respect to nuclear weapons.
Do you know if any country which possesses Trident 2, nuclear submarines, has ever taken the course of action of initiating, paying for an open court case to decide whether it’s actually legal or not?
MR. WEBSTER: My lady, I don’t see that this is relevant in terms of again the purpose for which this witness is going to be led. We were going to be given a resume, as I understand what my lady allowed, of international law.
SHERIFF GIMBLETT: I think I am going to allow this one question because I think it does relate to international law. If you can give an example if one court has dealt with it, but no further than that, Mr. Mayer. You are straying a little bit.
MR. MAYER: I’m obliged, my lady.
EXAMINATION CONTINUED BY MR. MAYER: It is difficult. Yes? – Yes, that was the World Court proceedings on the legality of nuclear weapons. All the nuclear weapon states showed up, every one of them, and in the proceedings it was quite interesting that both the United States and the United Kingdom tried to argue the various different scenarios for the use of nuclear weapons might be lawful. The World Court refused to endorse any of these scenarios as law, and the scenarios that the US and U.K. tried to argue were just using small little bombs, not the warheads on Trident 2. It’s also interesting that not one of the nuclear weapon states, not the US, not the U.K., attempted to justify using weapons against cities or mass extermination of civilians. Not one of them attempted to justify it; indeed, they all conceded, both the United States and the U.K. in particular, that any use of nuclear weapons would have to not violate the bodies of law that I am discussing here today with you, so there was a procedure and there were quite extensive Hearings. All these Governments showed up; they made the best arguments they could to get some degree of endorsement by the World Court for some uses of nuclear weapons, and the World Court refused to give it, even Judge (inaudible) from the United Kingdom made a very impassioned and well reasoned statement condemning uses of nuclear weapons on cities, on so-called (inaudible) targets; likewise Judge (inaudible) of the United States made a similar statement that the use of nuclear weapons on cities was clearly prohibited, that there could be no justification whatever for this.
MR. MAYER: Thank you. My lady, that might be a convenient moment.
SHERIFF GIMBLETT: Yes; we will adjourn for lunch now. During the lunch break I would be grateful if you would please not discuss your evidence with anyone, Professor, other than of course those who are instructing you. Ladies and gentlemen, I would be grateful too if you did not discuss anything that you have heard today during the lunch break. This is for your relaxation and indeed, although I would not normally say this until the end, you must not discuss anything to do with this until you have heard all the evidence. It is an emotive subject and you may be troubled, but you must not discuss it yet. We will come back at 2 o’clock.
After an adjournment for lunch.
SHERIFF GIMBLETT: Professor, just simply to remind you that you are on oath.
THE WITNESS: Thank you.
EXAMINATION CONTINUED BY MR. MAYER: I’m obliged, my lady. Before lunch, Professor, I was rather keen that we should press on, and I now want to establish with you whether you have published on the question of nuclear weapons policy? – Yes, I have, quite extensively.
Can you mention some of these publications for us, please? – Well, the paper I delivered at West point was published in the United States Military Academy and later in a scholarly Law Review.
Which one? — The New York Journal of International and technical (inaudible). After my paper of course there was a vigorous debate between myself and the generals and other US government officials about this matter and that drew upon my study entitled ” the relevance of international law to the paradox of nuclear deterrence” which was really the first study ever done relating the provisions of international law to the question of the nuclear deterrent. That was published in the Northwestern Law Review. I have also published articles – there was a very large international conference in Helsinki to commemorate the anniversary of the Nuremberg prosecution and I was asked to address the question of Nuremberg and nuclear weapons and that paper is in there. There are several papers and articles that I have published on the resume. Another, this organisation you mention that, ( Inaudible) that was (inaudible) is the motivating force behind the advisory opinion headed, a big conference in Berlin in I believe about 1989 and 90 and I was asked to give the keynote address there which I did entitled “the criminality of nuclear weapons” and that was published also.
Can I ask you a more particular question. Have you published on the subject of nuclear weapons targeting? — Yes I have. The study on that the relevance of international law to the paradox of nuclear deterrence which was based on these comments that I gave at West point dealt precisely with the question of strategic nuclear targeting and I studied that both as an undergraduate at University of Chicago with Professor Hans Morenthal (sic) who is considered the country’s leading expert on these matters.
Which country? — I’m sorry. The United States, and then at Harvard as I said a political science international relations programme and as I said Henry Kissinger went there to learn his… he published on that years ago when he was at Harvard. Also, since this is United Kingdom, back in 1985 there was the London Nuclear Warfare Tribunal there was convened in London and it was along the lines of the Bertrand Russell Tribunal and I was invited to come to this tribunal in London to speak specifically on the question of nuclear deterrence in international law and I did deliver a paper then and testimony and was subjected to examination by the judges.
Let me be even more specific. Have you published on the question of Trident 2 and the policy and targeting aspects of it? — I have a piece that I put together and I hope to be publishing soon dealing with Trident 2, yes.
Please don’t be embarrassed by my next question, but do you consider among your other areas of undoubted expertise that you are an expert on the Trident 2? — I have been qualified in the United States courts as an expert on nuclear targeting doctorate nuclear weapons systems in relation to international law, yes.
Including Trident 2? — I testified in court, in an American court, yes, in the prosecution of Mr George Hostensen in the state of Wisconsin back in 1986/87 on Trident 2 and also another case held about a decade later specifically on Trident 2, yes.
In those cases you were certified by the court as an expert? — I was, yes.
Thank you. Now, against that background I am sure like the ladies and gentlemen of the jury these words “International law” are ringing. Could you just if you can be fully explain what is international law? — Well, again here in Britain it is very much like but the United States. Our legal system was very much to an extent originally via Europe’s. International law is part of your law and our law, is part of the law of all states of the world, especially in the United States and United Kingdom. It is not some foreign body of law. There are international treaties and agreements, some of which I have discussed already such as the Nuremberg Charter which are binding and part of our law in both of our countries, and there are also customary international law and customary international law is a bit like common law that is applied here in the United Kingdom, and we have the same common law system and the United States where customary international law is part of that and it is routinely applied in cases both in the United States and the United Kingdom where these matters are relevant to the proceedings.
To some extent you have answered my next question, but apart from the United States and the United Kingdom where else does it apply? — Every other country. I only speak about how it specifically impacts on our two countries as I am more familiar certainly with the United States and United Kingdom legal systems than every other country around Europe, but technically we believe every other country within the world is obliged to obey the principles of international law and treaties of customary international law and the principles I was discussing today, the Nuremberg Charter judgment and principles which was recently endorsed by your House of Lords in the Pinochet decision which came back.
So am I right in thinking, then, that international law is a bit like the air we breathe. It is everywhere? — It is supposed to be, even if you’re not aware of it. It is like the little boy who said “I did not know I was speaking (inaudible)”. That is correct, but it is there. It is applicable. It became quite dramatic certainly at Nuremberg, the Nuremberg Prosecutions and the Tokyo prosecutions and we see it again today quite commonly in the prosecutions before the International Criminal Tribunal of the former Yugoslavia and the international Criminal Tribunal for Rwanda where there are now professional staff set up and judges in place and they are today adjudicating on questions of international law including the Nuremberg principles I have discussed with you today and incorporated in both statutes the crime of genocide, and people today are being prosecuted in the Hague for war crimes, crimes against humanity, genocide and other offences related to it, yes, and are being found guilty and sentenced and unlike Nuremberg and Tokyo, today everyone has concluded that the death penalty should be eliminated which it is, but very hefty sentences are given out for the types of offences I’ve been discussing. So, this is not a dead body of law. It is a very living, breathing body of law and it is being applied certainly to the former Yugoslavia, Bosnia, Croatia and Kosovo, the latest war down in Kosovo.
Now, once again I can imagine the ladies and gentlemen seeing the British Prime Minister and perhaps the Home Secretary or the Foreign Secretary sitting down and signing a treaty, but how does the customary international law get to apply right here? — Well, again the best example would be a House of Lords decision in the Pinochet case saying that as far as the law lords are concerned they believe the United Kingdom is bound by the Nuremberg charters and principles, that there will be no higher or lower – and indeed I could take that statement from the House of Lords and plead it in the International Court of Justice and the World Court judges would say yes, that is certainly sufficient to accept that the United Kingdom believes it is bound by the Nuremberg Charter and judgment and principles.
I see. So, rather like the Road traffic Act which you may not be familiar with, which we can all read which comes out of Parliament, there is also law made by judges? — That is correct, and that is the Nuremberg judgment which the Charter was signed for in London in 1945 and the trial commenced in 1946. There were British and American judges on the tribunal and they entered a judgement, a very important judgment, endorsing the principles of the charter which I discussed this morning and convicting the highest level of officials in the Nazi government of war crimes, crimes against humanity and as you know many of them were executed. They were hated at that time, and that judgment today, the Nuremberg judgment, is considered to be a source of custom on the international law that binds all states of the world, and that was the position taken in the drafting of the statutes of the Criminal Tribunal for the former Yugoslavia by the UN Secretary General, that this is international law. Indeed, in the World Court advisory opinion of 1996, the World Court expressly addressed the question of Nuremberg accountability for nuclear weapons and the threat and use of nuclear weapons and it recognised that there can in fact be accountability under the Nuremberg Charter, judgment and principles for the threat and use of nuclear weapons. It is a very important ruling by the World Court and there was no dissent on this point. So, the principles I discussed this morning, although originally developed with respect to the Nazi atrocities in the Second World War, the World Court itself has now recognised applies to the threat and the use of nuclear weapons.
I want to read to you if I may a passage for your comment.
THE PROCURATOR FISCAL: – May we know first of all what it is from and whether it is a production in this case, my lady.
MR MAYER: – it is not a production.
SHERIFF GIMBLETT: do you wish the jury to look at it?
THE PROCURATOR FISCAL: – I don’t know whether it is a matter – this witness as I understood it was being led to speak on matters of international law and I don’t even know whether this is for us is a case on international law.
MR MAYER: – I think I have to tell everybody what I’m about to read from. I am about to read a quote from an article in the Journal of Medicine, Conflict And Survival entitled “Nuclear weapons and the law” written by someone called Ronald King Murray, and I assume the court could trust that author as a former (inaudible) of the High Court of Appeal in Scotland to get the quote accurate. He is quoting the 1998 Defence Secretary who is now – the court will be aware from judicial knowledge – is now Lord Robertson the Secretary General of Nato. This is on the subject of Britain’s Nato nuclear defence policy. This witness has just spoken to his expertise and can comment exactly on this.
THE PROCURATOR FISCAL: – well I obviously have not seen this document my lady and your Ladyship indicated the evidence this witness was to give would be along specific lines and I am wondering what the point of this is in relation to the defence which is being run in this case.
SHERIFF GIMBLETT: – can I have a look at this before it is read out, Mr Mayer?
MR MAYER: – certainly, my lady.
THE PROCURATOR FISCAL: I think I should address you outwith the presence of the jury.
SHERIFF GIMBLETT: – do you wish Professor Boyle to leave as well?
THE PROCURATOR FISCAL: – I think it would be appropriate.
MR MAYER: – I withdraw the question.
EXAMINATION CONTINUED:- I want to turn if I may to the question of the relationship between the United States and the United Kingdom so far as their interactions on Trident 2 are concerned? — Yes.
First of all, do they speak to each other about Trident 2? — Well, I regret to inform you that pretty much this is a subordinate relationship, that the targeting decisions pretty much come from the United States with respect to the targets themselves, the policies which are made by what is known as the joint strategic target planning staff in Omaha, Nebraska. Yes, there are British officials out there to the best of my knowledge, but it is pretty much decided by the United States how Trident 2 will be used, what the targets are and other things of this nature and as I said the technology itself was provided by the United States. I believe the decision to use Trident 2 would certainly be in co-ordination if not at the behest of the United States. The targets selected would undoubtedly be at the behest of the United States. As I understand it there is the right of independence of the United Kingdom government and the British Prime Minister to veto things, but for all practical purposes the Trident system pretty much functions almost as an adjunct to US nuclear targeting and nuclear policies. I regret to say that because I recognise that to some extent this is a diminishment of British sovereignty, certainly as I see it, but I am sworn to give you my best opinion and that is what I think is the case today.
I take it from that, then, that the whole strategy of deployment of Trident 2 is really out of the hands of the British.
THE PROCURATOR FISCAL: – again I think we are straying away from the point of this witness’s evidence which was to be international law. We are now talking about what is alleged to be policies of government which apart from anything else is hearsay.
SHERIFF GIMBLETT: – there are two matters. Firstly, international law and secondly the reasonableness – let me put it that way – the necessity at the time of…
THE PROCURATOR FISCAL: – yes, my lady. I appreciate that, but I wonder what the targeting policy has to do with that.
SHERIFF GIMBLETT: – I can see that. I don’t know what the answer would be, but I can see that it may be allied to that I have to say.
THE PROCURATOR FISCAL: – if my lady is allowing this line of questioning…
SHERIFF GIMBLETT: – yes.
EXAMINATION CONTINUED:- I’m obliged? — Again I would not say that it is completely out of the hands of the British government, but the percentage of British control I believe is not that great and the British strategy here is subordinate to the Nato strategy. It is a component of the Nato strategy and the Nato strategy reports back to the United States and the selection of targets is determined in Omaha Nebraska with input I’m sure that the British government has, but they are integrated into what is known as the SIOP, the Single Integrated Operational Plan which is developed by the United States government, and it has in there the targets that will be hit by nuclear weapons of the United States and Britain, which weapons will hit which targets at what time, with what explosive power etc. All that is decided in Omaha, Nebraska. It is not drawn up here and it is not drawn up in Nato headquarters although as I understand it there are Nato officers in Nebraska and they do have an input, but it is pretty much an American operation. Again, going back to Churchhill however, the British government has reserved the right to a dual key arrangement which means if an order comes to use Trident 2 from Nato – and you should know that an American general, General Clark, is the commanding general of Nato – the British government has reserved the right to disregard the order. But beyond that as I said it is pretty much an American show when it comes to Trident 2 and you will recall we were the ones who provided this technology and we lease you our missiles. You don’t own these missiles. They are our missiles. I regret to say that because from a legal perspective in my opinion it does represent a diminishment of sovereignty which should not be there.
So if as you have explained every one of the ladies and gentlemen of the jury and every person on trial here, or the rest of us, has a right under international law to prevent these things causing catastrophe, what would be the legal effect of asking – indeed demanding – the British government to cease and decommission these things? — I am sure there would be enormous opposition in Washington DC if the British government were to say “we are going to denuclearise”.
No, my question was if a citizen could buttonhole the Prime Minister for a while, state his or her right under international to perhaps do what they could when they can about Trident 2, what would be the legal effect? Could the British Prime Minister legally say to that Citizen “I agree with you. I will do that for you”? — Well I could say certainly Britain has always reserved its right of sovereignty in this matter as a legal issue, but technically there is so much reliance and subordination to the United States in these positions that it would be extremely difficult for any British prime minister just to say “Fine, we will get rid of our nuclear weapons”. I’m not saying it is impossible – indeed I think it would be a very courageous step for any British Prime Minister, but for that person to actually carry it out would be very difficult. We have one example with New Zealand where New Zealand did decide after enormous opposition from the United States government to denuclearise and to prohibit any nuclear armed ships from entering New Zealand and enormous threats, harassment, bullying and intimidation was inflicted by the United States on New Zealand to reverse this policy.
And is that bullying legal in international law? — Pardon me?
Was their bullying illegal? — I was not privy to the threats. So I don’t know, but it was generally reported in the United States that enormous pressure was put on to New Zealand.
BY THE COURT:- The suggestion was raised earlier about hearsay which I did not deal with at that time because I was not sure what was coming but as that objection has been raised I would be grateful if you could confirm what you know personally on matters like this because I think you are straying into the realms of hearsay? — I was not privy to the use of threats, although again you can correct me as I understand in the United States as an expert I can testify as to what I learned as a result of my professional studies from the normal sources that experts rely upon.
Yes? — Thank you.
EXAMINATION CONTINUED:- please give us your opinion on the legal approach which would run — “you are not the only legal expert in the world. The use of Trident 2 might be illegal if there was another Trident 2 flying towards us. We will just have to wait and see kind of after the assault who is guilty and who is not. After all that is the kind of thing we do everyday with ordinary assaults”. What is wrong with that approach? — That was considered at Nuremberg. In the drafting of the Nuremberg Charter again primarily by the United States and the British government one of the beliefs was that the next time it is not going to be good enough just to have a trial and a deal with war crimes retrospectively. Rather it is better to head them off, to prevent them in the first place, and so for this reason the United States and British lawyers took the Anglo American Commonwealth of again what I call inchoate crimes – I’m sorry to use a technical legal term – but that basically means attempts to commit a crime, planning, preparing, conspiring and inciting, and in both our countries and both the legal traditions we have a history of these types of crimes, of criminalising behaviour before the final act itself occurs, and we were able to convince the other signatories to the Nuremberg Charter, which were France and Russia, the Soviet Union and finally most of the victors in the 2nd World War, to accept the Anglo American ideal of these inchoate crimes and put them in the Nuremberg Charter for the purpose of preventing the offences themselves, and again you can find this in the statutes in relation to Yugoslavia and Rwanda as well. There is the notion of inchoate crimes. So, I would say that is the grainy international law on the subject of that applies to all states which is that in addition to the substantive law offence, planning, preparation, conspiracy, incitement, is also criminal itself.
Now, you may have lost us using the word “inchoate”. What is that? — A crime that has not yet been completed, a sub-stantive crime. Preparation is an inchoate crime.
If I were to indulge for a moment and say that the law of Scotland says it is a crime both to plan a bank robbery and also a different crime to do a bank robbery? — That is correct.
Now, are you saying that in international law it is a crime, for instance, to plan genocide? — Yes, it is.
And to plan for the arbitrary mass destruction of human beings? — That is correct, yes, and conspiracy as well.
Yes, so it would be a crime just like planning a bank robbery, if it were done in a huddle, in secret? — Yes.
So, whether the public knew anything about either a bank robbery or the mass murder does not matter. It is a crime none the less? — That is correct.
Could you give us an example of such an inchoate crime – a real example? — Well again the World Court dealt with this in the advisory opinion on nuclear weapons and they said that threatening to use nuclear weapons is just as illegal as using them. So, if you are planning or threatening to commit mass extermination which a Trident 2 would do, it is also illegal to threaten mass destruction or mass extermination. So, the latest jurisprudence on this point I can give you…
What is jurisprudence? — Where holding by a court, would be the World Court advisory opinion especially where they deal with the illegality of the threat to use nuclear weapons. So, it is illegal and criminal to commit mass extermination. It is illegal and criminal to threaten mass extermination, and that would be an inchoate offence, a threat, but even in common law, say here in Scotland – and I’m sure in the United States we have a sort which is like a threat.
So, is a pattern developing here? If I threaten my learned friend with the point of this pen and he is aware of this threat and turned round and sees me, it is a real threat, and I tell you that that happens to be a crime here, you are just telling us that the same is also true on a global scale? — That is correct. It would be a bit like taking a loaded shotgun and pulling the pins back and taking the trigger and pointing it right at his head. That would be a criminal activity I’m sure here in Scotland and I’m sure it would be a crime in the United States. Here with Trident 2 you are pointing the shotgun at the head of millions of people.
I think the point about that is you do not know which millions? — Well, from what I have read of the British targeting data the British nuclear weapons will be used against Moscow which is a city of, a Metropolitan area of 8 million people. So, if you are talking about using most of the British Tridents on the Moscow area, the odds are quite good that you could kill almost every one there almost of them. So, we do have some idea in the professional literature that the British Tridents are targeted on the city of Moscow.
My point really was we would not know the names of the people who died? — Well I have friends in Moscow and I’m sure not many of them would survive.
Do you think you are qualified to tell us at what stage of its going to sea – let us assume that Trident 2 is in a big hangar and it slips into the sea at let us say Loch Goil – at what stage does it become deployed? — As I understand it the Trident system submarines are capable of launch in dock and are kept at that capability, yes. I recently read that Britain does not currently do it while they are at dock, but that capability could be easily changed very quickly. That in the United States I think the Tridents are capable of being launched even when they are sitting in Port.
It would be very embarrassing if the President of the Prime Minister had to say to people, “I’m very sorry we got nuked. We could have fired back but we were parked in a lay-by”? — That is correct. The ones deployed at sea are fully capable of being used within 15 minutes but, yes, as I understand it certainly in the United States even the ones sitting in Port can be used.
And am I right in thinking then that these missiles arc effectively never deployed. They are always employed? — Well, obviously some of them can be taken down for maintenance, but effectively they are always ready to be used.
I think I may have confused a few people are when I used the word “deployed” to mean in the negative and then “employed” to be used in the positive. I think in military terms they use the word “deploy” in the positive? — Yes.
Let us get that clear? — Basically you are right. The normal policy of Tridents is that they are always ready to be used and you have two teams of ships. You have one at sea and one in Port at all times and even when they are in port they are supposed to be ready to be used and launched in the port. So, if the order came you could have Tridents taking off right here in Scotland in the lochs up here at Faslane or wherever they are, sure. That order could be given and they surely could carry out that order.
CROSSEXAMINED BY MR MCLAUGHLIN:- Professor Boyle, I don’t intend to ask you many more questions. However, is it fair to say that you can comment in this court on the United Kingdom’s targeting policy as far as it relates to Trident 2 because of a direct connection between the United Kingdom and the US? — Yes.
And the link is Omaha Nebraska? — That is correct. All the targets are selected in Omaha Nebraska, not here.
Can I ask another point about whether the general assembly have approved the Nuremberg principles? — They did, and the Law Lords in that Pinochet case pointed this out, that the most important part of the Nuremberg principles as far as the UK was concerned was that it had been unanimously approved by the United Nations General Assembly, and the Law Lords said that in their opinion it removed any taint of Victor’s justice that might have been claimed with respect to the Nuremberg Charter and judgment itself. Again that was in the recent Pinochet decision by the House of Lords.
Can you please explain to ladies and gentlemen of the jury the inference – the difference between nuclear-weapons and specifically Trident G2 nuclear weapons? — I think the question here is the nature of the Trident 2 system, which is certainly the most powerful nuclear weapons system in the world. It is an offensive first strike strategic nuclear weapons system. This is well understood in the United States. There are plans for the first use of these weapons systems. It is not simply in retaliation, but to use them first, not second, and again the use of 101 Trident warheads on Moscow on the City would be absolutely catastrophic because it is a payload of 100 kilotons which is 8/9 times the size of the Hiroshima bomb. So, it is not a case of nuclear weapons in the abstract as I see it, which is – the World Court advisory opinion was an abstract question – but this is a question about this case and the nature of the Trident G2 and as I see it Trident 2 myself, in my own writings – and has been argued in American courts – it is an offensive first strike strategic nuclear weapons system whose primary purpose is the mass extermination of what we call in the United States mutual assured destruction Act – that is what nuclear deterrence is all about, mutual Assured destruction. That is killing as many human beings and as many civilians as possible, and again as a professor of international law I do not see how the Trident system whether used by this United States or Britain can be used without falling foul of all the international legal principles I have discussed with you today, and I could not envisage a circumstance where the use of such systems would be allowed.
So, the Trident 2 weapon – you could not envisage it being used in self-defence? — It is not planned to be used in self-defence, and even if it were to be used allegedly in self-defence, the World Court ruled that it still must comply with all sources of international law that I discussed with you today and again even if it were to be allegedly used in self-defence I do not see how it could be used without violating all the sources of international law I have discussed with you today. We have an example of the recent war that your country and my country participated in over Kosovo where you were able to see on your television screens Nato jet fighter bombers using accurate weapons over military targets. There it was even within cities. There we had a discriminate weapon being used for a precise purpose, and an attempt being made to minimise casualties. That is not the nature of the Trident 2 warhead. Again it is 100 kilotons, 8-10 times the size of Hiroshima and Nagasaki. So, that is a very different type of weapons system and as I also understand that Britain has now stripped out all of its smaller nuclear weapons systems. They no longer employ any of them. So, it is no longer a question for example – in the World Court, both the United States and Britain argued that it might be possible for there to be some low-level detonation of some very small-scale nuclear weapons on a remote island. That could be law, and even then the World Court refused to endorse that as being law. They would not express an opinion that said that this was law and again all the judges including Judge Higgins from the United Kingdom and Judge Huevo (sic) from the United States condemned the use of any nuclear weapons on cities and on civilian populations. This goes back to the Nuremberg Charter judgment and principles and let me read — the learned counsel mentioned the approval of the Nuremberg principles by the General Assembly that was just endorsed by your law lords, and the Nuremberg war crime is defined in part as “1, destruction of cities, towns or villages” and I think that is exactly what the Trident G2 would be used for, destruction of cities towns or villages, and that you can find in the Nuremberg principles as defined by the General Assembly and recently approved by your own law lords.
Can you explain to the jury the difference between the words “strategic” and then place Trident in that? — Pardon?
Could explain the use of strategic nuclear weapons, sub-strategic nuclear weapons, and place Trident within that? — Well, they used to have what we called tactical nuclear weapons, one would categorise as tactical nuclear weapons. The use of a tactical nuclear weapon had the explosive power of the bombs that hit Hiroshima and Nagasaki. Also, the categorisation itself was suspect because as I said when the United States scientists moved from developing regular atomic devices – what today we would call tactical nuclear weapons – to thermal nuclear devices which is what Trident 2 is – many of them quit because this was back in the early 1950s, because they took the position that a thermal nuclear weapon like there is on Trident 2 could only be used for the purpose of genocide, mass extermination of human beings, and they wanted nothing to do with it, and again I think that their assessment is correct. Britain no longer has tactical nuclear weapons. You phased them all out and all you have now is the Trident system.
So, are you saying to the jury that because Trident is non-discriminatory that you cannot conceive of any way in which it can be used legally? — Well, the British Ministry of Defence accept that they might consider putting a low yield bomb on a Trident missile. That would not detract from the fact that all the rest of Trident plays a strategic role, but the low yield bomb is currently the so-called rogue state strategy which is part of the strategy which has now been adopted by the Clinton administration. The Clinton administration recently adopted a new strategic doctrine which is that the United States government will be prepared to use nuclear weapons no longer against simply Russia and China but even against so-called rogue states and it does appear that Britain might be prepared to participate in that by means of the Trident system. If they did, they have said they would consider putting a low yield cobalt, comparatively low-yield device along the lines of the size of the bombs at Hiroshima and Nagasaki, but even then if they were to target those upon a city, the result would be the same as at Hiroshima where there was approximately 200,000 people killed, and many others who suffered radiation sickness since then.
So you are saying to the ladies and gentlemen of the jury that where Trident 2 is deployed and is targeted, that amounts to a threat. There is no situation where it is just being held. It is in a threat mode throughout? — Yes, and that is the whole purpose of the targeting, to threaten mass extermination. That is the theory of mutually assured destruction which I think we can all figure out what that means, that we are the ones who will be destroyed, all of us, and now that the World Court has resolved the dispute among international lawyers, whether to threaten to do something that was illegal and not get that threat itself illegal, and the World Court unanimously ruled no, you cannot threaten a country by using nuclear weapons without that being illegal. So, threat and use are both illegal. If it is illegal to use a nuclear device, a nuclear weapon, on a city, it is also illegal to threaten to use a nuclear weapon on a city and certainly that is the primary purpose of the Trident 2 system.
CROSSEXAMINED BY MS ZELTER: – You already said quite a lot in answer to these questions but I want to be absolutely clear. Sir Nicholas Lyall on behalf of the UK stated to the UNCJ on the 15th of November 1995, “if all other means at their disposal are insufficient then how can it be stated that the use of nuclear weapons must be disproportionate unless it is being suggested that there comes a point where the victim of aggression is no longer permitted to defend itself because of the degree of suffering which offensive measures will inflict”. Now, I have assumed from what you have said today that the whole point of international humanitarian law was indeed to limit the terrible effects of war, to ensure that there was something left worth living for afterwards. Would you please explain if there are any limits to justifiable self-defence? — As the World Court found in the advisory opinion ultimately despite this particular statement that both the United States and Britain conceded in the World Court even if you are acting in self defence you must obey the rules of war, the laws of war and international humanitarian law that I discussed with you today, and again those can be found in (inaudible) regulations of 1907, the Geneva conventions, the Geneva Protocol, the genocide Convention and the Nuremberg Charter judgment and principles and again I would point out that the United States and the United Kingdom are either parties to all of these treaties or have expressly accepted them. So I would state that that statement with all due respect is incorrect and it was not accepted by the World Court. It was rejected, and the court made it very clear in the advisory opinion that self-defence to be legitimate must adhere to the rules of international law I have discussed with you today.
Are there any (inaudible) rules of International that must be obeyed always, whatever the circumstances? — Again the World Court ruled this in the advisory opinion, that even in extreme circumstances of self-defence you must adhere to the basic rules of international law I have discussed with you today and in particular the regulations of 1907 and the Geneva conventions of 1949, which apply in the United States and Britain, and Britain has recently – your Prime Minister Blair, is party to the Geneva Protocol 1 which has very express rules on targeting military forces. The United States government is not yet a party to Protocol 1, but Britain has become a party to it and in my opinion there is no way the Trident 2 nuclear weapons system can be used without violating the targeting rules in Protocol 1. I just do not see how it can be done.
This may seem like I am going over old ground again, but again it is another thing that the UK government continues to say to us. Is it permitted under international humanitarian law for the UK to defend its vital interests to the utmost by using nuclear weapons? — That is the same argument the Nazis made in Nuremberg. “This is a total war and we can do whatever we want” and when the Nazis made this argument at Nuremberg it was rejected emphatically and overwhelmingly at Nuremberg. I regret to report that we have US government officials remade exactly the same argument and I always point out that that is exactly the same argument that the Nazis made at Nuremberg and I repeat accordingly that this is a Nazi argument and I regret to say that unfortunately we have officials in both our Governments who apparently have not bothered to read the Nuremberg judgment and the arguments that were made by the Nazis and their lawyers were rejected, and that argument was not accepted by the World Court.
Again another subtle difference. Could you comment on the legality or illegality of a threat to use a small tactical nuclear weapon of, say, one kiloton, as a warning shot? — You know, both the United Kingdom and United States tried to convince the World Court that that scenario was lawful and the World Court refused to endorse that scenario as law. They did not do so. They would not endorse any scenario for the use or threats of use of nuclear weapons as all. So, when they tried to get the World Court to agree to that the World Court would not go along with it.
In your opinion bearing in mind the continuing active deployment of UK Trident missiles is there an ever-present material danger to life? — Certainly. There have been many instances publicly reported in United States of malfunctions of nuclear weapons systems, mistakes being made, and the United States coming within 10 to 15 minutes of ordering a nuclear launch by means of a mistake. There was a recent case in Russia where they came within 10 minutes of launching nuclear weapons. So, yes, there is a substantial literature on this precise issue and indeed there is a very well-written report by a professor Paul Bracken called “the command and control of nuclear weapons” and he is a nuclear weapons engineer and it was published by the Yale Press where Bracken points out that most people think that our nuclear weapons systems are fail-safe system, where if anything goes wrong it would not be used and he said that that was incorrect, that they are on a fail-deadly system. So that if something goes wrong it is not stopped. They are programmed to go off. So, the situation is extremely dangerous and these things can go off. You read today in the pages of the newspaper about a nuclear accident in Japan. Things do happen with respect to nuclear energy and there are many accidents and close calls in the United States with respect to nuclear weapons systems.
Now, the ICJ said that their existing obligations to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament and all its aspects under strict and effective international control – this is referring to the Non proliferation treaty. Does this mean that the UK which continues the production of nuclear weapons engages in research in the next generation of their design and continues to rely on nuclear deterrent fulfils its legal obligations under this paragraph? — No, and this was a unanimous ruling by the World Court on this point, a 15-nil judgment with judge Higgins and judge Huevo (sic) of the United States voted for it. I have written about this issue myself. Based on my analysis of the records, this obligation come from the Nuclear Non-Proliferation treaty of 1968 which both the United States and the United Kingdom are party to. I myself do not believe – and I’m not the only one – that there have really been any efforts made by any of the nuclear weapons states – the United States, Britain, France, Russia or China – to fulfil this obligation. So I don’t think Britain is alone, but I do not believe that they are heading in good faith towards that. The only exception might have been the Soviet President Gorbachev when he made an offer to President Ronald Reagan at Reykjavik to denuclearise, and unfortunately President Reagan decided that he wanted to have his Star Wars system instead of pursuing the proposal by President Gorbachev., but that was there really the only proposal made to secure this obligation and it is my opinion that all of the five in fact major nuclear weapons states including the UK, US, Russia or China and France, are in breach of the Nuclear Non-Proliferation treaty and in breach of this ruling by the World Court, yes.
My last question is – the UK government has stated that in its opinion the UK is not breaking the law. Even in the view of the majority of the World nations it is felt that UK nuclear weapons are illegal and criminal, nevertheless, can this in any way provide legal justification for all UK citizens to try to disarm them by doing physical damage to them? — Well again this is the same argument the Nazis made at Nuremberg. Generally one of their defences among many was that “we were just carrying out our domestic law” and “everything we did was sanctioned by Nazi law somewhere or other”. That particular defence again was rejected at Nuremberg. You find in the Nuremberg principles that you simply cannot plead your domestic laws to excuse of violations of international, and that became the whole thing about Nuremberg and that is again good law today, international law, that I think is a correct interpretation.
CROSS-EXAMINED BY THE PROCURATOR FISCAL: – May I take it, professor, that you are totally against anyone anywhere in this world possessing any kind of nuclear or atomic weapon? — Why do you say that?.
I’m just asking if that is your view or not? — It all depends on the circumstances: what type of device – this is the same answer the World Court gave. You would need to look at the particular circumstances involved. One is the weapon and the yield and what is the target at what is the purpose?
So you are saying in your view there are some of these weapons which can in your view be legitimately held and others which cannot? — No I am not saying that. I am saying I would have a difficult time conceiving of circumstances where any nuclear weapon could be used lawfully but certainly in the case of Trident 2 I don’t have any reservations at all on Trident 2. Again I get back to the arguments by the US and the UK at the World Court. If you take this precise argument, that you could take a small yield device, blow up an island somewhere, is that not law, and the World Court expressly refused to endorse the legality of that use of nuclear weapons. I have no reservations about the Trident 2 system.
So there are some of weapons, nuclear weapons of mass destruction and indiscriminate destruction which in your view are legal? — No, no nuclear weapon which would have any mass-extermination or indiscriminate destruction is legal that I am aware of.
So your view is that all nuclear weapons no matter who they are held back, no matter what circumstances they are held in, are illegal? — Certainly all strategic nuclear weapons systems are clearly illegal. That is true whatever state you are talking about, yes, and I have written and I have said the same thing when I was lecturing in the Soviet Union, that their nuclear weapons systems were just as illegal as the Americans, sure.
Can ask you to answer the next question yes or no? Did the World Court in the judgment that you have referred to say that it was illegal in all circumstances to use, to threaten nuclear weapons? — That was a question asked to them, any circumstances, and they did not answer that question because they said that in the opinion they did not have sufficient facts to answer that question.
Did they not in paragraph 105/2/B say, “there is neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such? — Yes, what they meant to say there…….
Well, did they say that and is that printed in the judgment – yes or no? — Well, let me get 105/2/B. I think as an expert I am entitled to…….
You may well be re-examined on this, but I’m just asking you as a matter of yes or no, is that the printed written opinion under paragraph 105/2/B? — Yes, 105/2/B says by 11 votes to three, “there is neither customary nor conventional international law any comprehensive or universal prohibition on the threat or use of nuclear weapons as such”.
And under paragraph 105/A, the third paragraph, does it say, “however in 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 could be at stake”. Is that also part of their judgment? — That is in the dispositif, and the court did say the dispositif must be interpreted by reference to the preceding part of the opinion.
But that is part of the judgment? — That is part of the judgment which they said in paragraph 104 has to be interpreted by the preceding paragraphs.
With the exception of testing, professor, how many times have nuclear or atomic bombs or devices been used against civilian populations? — Hiroshima and Nagasaki.
1945? — That is correct. August 6th and August 9th.
55 years ago? — That is correct.
At present, how many states of the world that you are aware of hold a nuclear weapons of mass destruction? — Well there are acknowledged the major five – United States, Britain, France, Russia and China. India and Pakistan have recently exploded these devices, and (inaudible) in the United States army that Israel probably has 200 nuclear weapons.
Could we exclude for instance Iran or Iraq having anything like that? — I have no evidence now that Iran or Iraq has nuclear weapons.
And what about the various former Soviet republics? — They have turned all their nuclear weapons over to Russia and the nuclear weapons that were in the former Soviet republics were evacuated to Russia and they are now in Russia.
If you could answer this question yes or no, you are aware of the term “nuclear deterrent”? — Yes.
And you are aware for example that United States and Britain and various other states have used that phraseology? — Yes.
Are you aware one of the arguments in favour of having nuclear deterrent is during the last 55 years including major crises involving major powers and the Cold War, their argument is that both sides having these nuclear weapons they were never used. You are aware of that argument? — I don’t agree with that argument.
No I don’t expect you would, professor but are you aware of that argument? — I am aware of that argument, yes.
Now, the only time that these weapons have been used against civilian populations was against Japan in 1945? — That is correct.
Correct me if I’m wrong, you being American, but you might know more about it than I do. Was one of the justifications if not the justification that the Americans put forward at the time was that having suffered such heavy casualties in taking Okinawa that to attempt to take the Japanese mainland they would suffer the reckoned about 1.5 million casualties? — Well, I have written a study…
One of the arguments they put forward for dropping the bombs on Japan was that? — I have written a study on this going through all the arguments and pointing out that even in accordance with the United States War Department Field manual of 1940 the bombs on Hiroshima and Nagasaki could not be justified in accordance with international at that time.
I’m not asking whether or not it was justified. I’m saying was that not one of the arguments which was put forward? — First let me say that my father participated in the invasion of Okinawa and he was only one of two Marines left in his company following that invasion. I was raised to believe this by my father, but if you look at the historical records you find out that this was propaganda.
I’m not suggesting – I was only asking you if that was one of the arguments which was put forward to justify the use of the bombs? — I am saying that it was propaganda put forward on an ex post facto basis to justify…
Clearly you don’t believe it, but it was one of the arguments they put forward to justify the use of the bomb on a civilian population who did not have a nuclear device of their own. Is that correct? — That is one of the arguments they made.
Now, you are an expert in these matters. You have told us of your expertise and you have given us more than four hours of evidence on it and you tell us that your father participated in this particular war. In your opinion is it likely that the Americans would have used that bomb if the Japanese had had their own atomic device or atomic bomb? — The bomb itself was developed for use against Germany. That can be established from the public record. They had no intention of using it against Japan.
But they did? — Pardon me?
They did? — Not at the beginning. What happened was sort of bureaucratic inertia. They had a weapon and it became operational after Germany had surrendered, but the original impetus in developing the weapon was to use it against Germany.
But to go back to the question, the original question was do you think it is likely over the Americans would have used the bomb if the Japanese had had their own nuclear capability, their own atomic capability? — The Japanese did not have a nuclear capability.
We know they did not. My question really is do you think it is likely that the Americans would have used it had they known that the Japanese had such a capability.
MR MAYER: – I would be obliged if my friend did not lead this expert into what is clearly speculation. None of us can answer the question posed. We would have to go back in time to do so.
THE PROCURATOR FISCAL: – my lady, this is clearly a witness, an expert witness who has given a lot of opinion evidence and a lot of it itself is speculative in any event, and I am not asking him to attempt a question which has not be asked of him several dozen times.
THE WITNESS: – I am prepared to answer the question. It is not exactly clear what would have happened if President Roosevelt had been there, I do not know. As you know, he died in April 1945 and I think there is a good chance that if President Roosevelt had lived the bombs would never have been used. I think that President Truman came in and he was unaware of the bombs as vice-president. He was a very insecure man and his advisers will tell him that he has to use these bombs and so he uses the bombs. So it is my personal opinion that with President Roosevelt in there he very well might not have used these bombs. If you ask if me for my personal opinion, that is sheer speculation on my part.
That is exactly what my friend is objecting to me asking you to do, but you have done it? — I have given you the best answer I can.
The bomb was dropped by a power with that capability upon a country which did not have that capability. Is that correct? — That is correct.
And over the past 55 years that has not occurred again, has it? — We have come extremely close in the Cuban missile crisis…
It has not occurred? — Only by the grace of God.
But it does not occurred? — Only by the grace of God.
Because of the policy of nuclear deterrent whereby as you referred to both sides are afraid to call the other’s bluff? — No, I think it is only by the grace of God. We have got very close in the Cuban missile crisis to an all-out nuclear war on both sides and there were other confrontations between the United States and the Soviet Union, but not quite as close as the Cuban missile crisis, but extremely close, yes
RE-EXAMINED:- One or two questions in re-examination. You were referred by my friend the prosecutor to the conclusions of the International Court of Justice, what we have been calling the World Court. I just want to ask you this. Was it the case that an absolute majority – 10 out of 14 judges – that is, a two-thirds majority – of the judges of the World Court said that that the threat or use of nuclear weapons is either entirely illegal or generally illegal subject to the one possible exception? Is that the case? — Well, let me say this first of all. The paragraph 140 which precedes this paragraph containing what we lawyers call the dispositif says, “The Court emphasises its reply to the question rests on the totality of the legal grounds set forth by the Court in the above paragraph (inaudible)” and so, with all due respect to your fellow learned counsel here from Scotland, you simply cannot pluck out of that the language from 105 all by itself. It must be interpreted by reference to the preceding 104 paragraphs. That being said, however, in answer to your question, the court in paragraph 1 C of the dispositif ruled unanimously, “a threat or use of force by means of nuclear weapons that is contrary to article 2 paragraph 4 of the United Nations Charter and fails to meet all the requirements of paragraph 51 is unlawful”. Then in a paragraph beneath, unanimously “threat or use of nuclear weapons should also be compatible with the requirements of international law applicable in armed conflict”. That is the laws of war which I have been discussing with you today – “particular those of the principles or rules of international (inaudible) law” which I have also discussed, “as well as with specific obligations,other treaty and other undertakings which expressly deal with nuclear weapons”. So, those two rulings were unanimous and they were in the exact same paragraph. So, the court by saying, “we are not going to render an opinion on this issue at this time” did not at all intend to take back anything else it had already said.