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
Monday, 18th October 1999
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.
EXAMINED BY MR. MAYER: What’s your full name please? — My name is Rebecca Johnston.
What age are you please? — I am 45.
Do you hold a degree from the University of Bristol? — Yes, I do.
What level of degree and in what subject please? — It was in Philosophy and Politics and it was 1977 and it was a 2/1.
And did you then take another degree at the University of London? — Yes, after spending some years in Japan I took a Masters Degree at the University of London in International History Relations of the Far East. It was a (inaudible) study at the University of London.
And since then have you, would it be fair to say, worked in the field of international security and nuclear issues? — Yes, since the early ’80s. Since doing that Masters Degree I have been working in the field……
SHERIFF GIMBLETT: Just one moment. I wish to ask you something. I wonder if you could go more slowly and speak a sentence at a time. We have two interpreters who are trying to keep up with you.
THE WITNESS: Excuse me.
SHERIFF GIMBLETT: No, it is all right. Where did you get to?
THE WITNESS: Yes, so I had been working in the field of international security with particular priority on weapons of mass destruction which is nuclear, chemical and biological weapons and in the field of arms control and international diplomacy.
EXAMINATION CONTINUED BY MR. MAYER: Thank you. From 1988 to 1992 were you an international co-ordinator on the nuclear test ban treaties? — Yes, I was.
And are you presently the managing editor of a specialist publication called Disarmament Diplomacy? — Yes.
In London? — It is based in London but the journal Disarmament Diplomacy is the foremost journal in its field on the issue of multilateral arms control and negotiation and it is taken by foreign Ministries around the world and by the Diplomatic Missions to the United Nations in Geneva, New York and Vienna which is where we do most of our work.
Do I understand that whilst we may do most of our work in Greenock, you do yours in Geneva, New York and Vienna? — Yes, with occasional stop-offs at the main office in London.
I see. And whilst you are in these cities, do I understand it that you are often at what we might call conferences which are get-togethers of diplomatic missions and experts? — Yes, there is two kinds of meetings that I normally attend. One is the UN bodies which monitor or negotiate Arms Control Treaties.
Yes? — For example, I followed and monitored the Comprehensive Test Ban Treaty…….
SHERIFF GIMBLETT: Go slowly.
THE WITNESS: From the beginning of negotiations in 1994 until it was concluded in 1996 and I continue to follow that Treaty through. I was in Vienna just two weeks ago at another major meeting for that Treaty on its entry into force.
EXAMINATION CONTINUED BY MR. MAYER: What do you mean entry into force? What does that mean? — Well, when a Treaty is first signed there’s a period of time for the countries who sign it to ratify it which means that they have to put it through their own Parliaments or legislatures.
So that it becomes law in their own country? — So that it becomes law in their own country and each Treaty enters into force after a certain number of key countries have ratified.
Would the United Kingdom be one of the key countries? — The United Kingdom was one of the early countries to ratify the Comprehensive Test Ban Treaty. Now, the other set of conferences or the other Treaty which I follow very closely is the Nuclear Non-Proliferation Treaty.
Would that be the NPT? — Yes, it would.
That is the one that is supposed to stop proliferation or build up of nuclear powers? — That is correct, and that Treaty was actually concluded in 1968 but it has had some very difficult and important meetings among the altogether 187 countries of the world who have now joined that Treaty, who have signed up and ratified it so I have been following that in detail in the last decade.
Thank you. In the last 12 months have you published in distinguished journals in Washington, for the United Nations, for the Swedish Session of the International Positions on the Prevention of Nuclear War, etc.? — Yes, I have had publications in the Bulletin of the Atomic Scientist, in Arms Control Today which is based in Washington and also under the United Nations Institute for Disarmament Research.
And as well as publishing in the last 12 months, would it be fair to say that you have probably been in more parts of the world than a pop star? — I wouldn’t put it quite like that but there is another side in my work. One part is to monitor the international treaties and the other part is that I am invited as an expert to a range of meetings, seminars, conferences, to discuss the state of non-proliferation nuclear arms control, chemical and biological arms control obviously as well and so on and a variety of conferences around the world.
Thank you. And lastly, on the question of your expertise and its currency, do I see that when a few days ago the crisis arose in Pakistan…………
MR. WEBSTER: I don’t really know what that has got to do with the events of the night of the 9th June.
SHERIFF GIMBLETT: I think he is just establishing her expertise. I will allow the question.
MR. MAYER: And its currency, my lady.
EXAMINATION CONTINUED BY MR. MAYER: When the crisis arose in Pakistan I see you quoted on the front of the Washington Post, the Financial Times, the international version, and The Guardian? — Yes, it was actually over the crisis in the United States Senate when they rejected ratification of the Comprehensive Test Ban Treaty. I was also on BBC, Sky and various others.
Yes, so it would be fair to say, or just answer me this: is this the first time you have been asked to comment by such distinguished journals? — No, if there is a crisis, for example in 1998 when India and Pakistan both exploded nuclear weapon tests underground, whenever there is a problem with a Treaty such as this then I am often called upon to comment on it and to say what is going on and what the problems are.
Miss Johnston, is one of your areas of expertise the day-to-day workings of country following something called the Advisory Opinion of the International Court of Justice of July 1996? — Yes.
MR. WEBSTER: My lady, at this stage I would like to raise a matter outwith the presence of the jury.
SHERIFF GIMBLETT: Yes. Now, Miss Johnston, if you would like to retire. I have to deal with various objections relating to the law and during those periods I have to ask the witness to leave. Would you mind leaving just for a moment?
THE WITNESS: Shall I leave my things here?
SHERIFF GIMBLETT: Yes, they will be quite safe.
Ladies and gentlemen of the jury, you are very well familiar with this procedure. Would you mind leaving us please?
The jury retired.
SHERIFF GIMBLETT: Now, Mr. Webster?
MR. WEBSTER: Yes, as my lady has perhaps anticipated, my objection is on the grounds of relevancy in this line of evidence. As I have indicated in the past to my lady, the timing of the objection has to be chosen carefully. It can either be premature or it can be too late. Now, I have allowed of course my friend to take from this lady certain evidence in relation to her expertise.
SHERIFF GIMBLETT: Yes.
MR. WEBSTER: It would appear……. it is not clear for whom she works. I don’t think the jury at this stage will be clear for whom she works, whether she is actually an officer of the United Nations or an official of some government or some agency or indeed an official of something such as Greenpeace or whatever, my lady. It is not entirely clear but what is clear is that her area of expertise is apparently philosophy, politics, issues of multi-lateral arms control negotiations, international history in relation to the Far East, she takes part in two types of meetings; first of all United Nation bodies which monitor or negotiate arms control treaties and the monitoring of the Nuclear Non-Proliferation Treaty of 1968.
Now, my lady, this is all very interesting but, as I have submitted before to my lady in this trial, the first base in this case in relation to relevancy is the indictment. Now, of course, I appreciate that we are admitting certain evidence in this trial up to this point. We have, for reasons given by my lady, the Crown obviously respect that step beyond that but certain of the evidence which has been admitted in this case to which the Crown has objected has been on the basis that here are documents which the accused have read and which have influenced them or the Professor who gave evidence on Friday, I was a pupil of his and became influenced by him and he gave expertise in relation to what nuclear weapons are capable of, etc., etc., but it seems that we are now moving into an entirely different area, namely the area of international arms control, the performance I think of various governments is what is going to be touched on during the course of that. In my submission, my lady, that is I wouldn’t say a million miles away from it but it is way, way beyond, in my submission, what my lady has allowed up to this point. This witness does not appear to be a scientist, not an international law expert and, from what my friend has taken from her so far, not a warrior. So, in my submission, any comment which she could make regarding for instance the 1996 advisory opinion could be objectionable. She is not an expert in that field.
In my submission, what relevance do these treaties have to the charges against the accused as to whether or not countries have or have not complied with the Non-Proliferation Treaty, for instance. As I understand one essential point of the Defence in this case it is the ICJ judgment which the Defence say makes the threat or use, and no doubt will try to argue the position later, is illegal, but in my submission, my lady, we have then got a whole new field. The ICJ have presumably taken into account the capabilities of nuclear weapons when they reached their advisory opinion and in my submission, evidence with regard to monitoring the control of treaties, monitoring the proliferation of nuclear weapons and monitoring the performances of Government in relation to the NPT of 1968 are irrelevant, given the charges which the accused face.
Always remembering, my lady, that they are not charged with damaging a Trident submarine, a Trident missile or a Trident warhead. They are charged with carrying out damage to a barge which on occasions has provided facilities to enable research to be carried out, according to Mr. McPhee, on various vessels and on one occasion including Trident perhaps again in the future. I perhaps have a slight advantage over my lady so far as this witness’s evidence is concerned in that being an expert witness the Defence provided me with a copy of her statement as well as also of her CV and I checked out with my friend, Mr. McLaughlin, that I had the same one as he had and it is split into various headings. I don’t know whether my friend intends to go through all of these or to what depth they intend to go through it but it starts with the decision to deploy Trident. We then have Britain’s international, legal and treaty obligations regarding nuclear weapons.
Now, depending of course on what questions are asked there may be some relevance there although I don’t understand it from what we have heard from the Defence expert so far. It is being suggested that for instance when Britain was carrying out tests in contravention of any Test Ban Treaty and even then I would suggest what relevance does that have? The fact is that we are dealing here with the Trident submarine. The next one is aspects of British and NATO policies which undermines the NPT which is presumably the Non-Proliferation Treaty. I would submit that that is totally irrelevant so far as current matters are concerned. Nuclear targeting and nuclear doctrine, now although that has been touched upon by certain witnesses who have been led for certain other reasons, my submission would be that we don’t need to go into any detail on that, that that is irrelevant. If, as the Defence are arguing, the ICJ opinion, taken at its highest, renders nuclear weapons “illegal”, whether it be threat, use, or as I suspect will be argued, possession. What does it matter where they are targeted? Either they are legal or they are not. That is the Defence case. We then have British co-operation with the US and France. Well, again, my lady, what relevance does that have? We then have nuclear fuel cycle leading to the production and deployment of nuclear weapons. We then have a section Nuclear Testing. As I say, I am obviously not privy to what extent my friends will go into all of these various subjects but I think we should bear in mind what the position of the accused was when they gave evidence. Basically, certainly so far as Miss Roder is concerned was we were, or the best we hoped for, to use my friend’s words, was to delay the testing at Loch Goil on the fourth Trident submarine.
So, in my submission, bearing in mind not only the libel but the evidence which we have heard from the accused, these various matters are outwith the relevance of this indictment and I reiterate, my lady, my lady has admitted certain evidence from certain legal experts (inaudible) particularly, legal expertise in commenting on the international court’s judgment, Judge Pander’s evidence with regard to supporting Miss Zelter’s credibility with regard to the effect of civil disobedience and certain other evidence from other witnesses on the basis that what I have read of what they produced or what they were told influenced me to carry out these acts. In my submission, none of the subject matter which I have referred to, my lady, falls within any of these categories so that we are now moving way beyond the bounds which have previously been set in terms of relevancy.
MR. MAYER: I am obliged, my lady. I appreciate the learned Fiscal’s difficulty. He must take his objection when he can but, in my submission, this witness is entirely relevant. I can say straight away, having recently consulted with her this morning, that of the seven headings which my friend gave to the court which came from a document produced by the witness I shall not be developing the information in Chapters 5, 6 an 7. That was field cycle leading to production and deployment. That seemed to me to be too far away from the incident in question. The co-operation with US and France seemed interesting to me but I shan’t develop it, and nuclear testing, the Australian Royal Commission, etc., these things are mentioned here, I took the view that they should not be questioned on.
However, my lady, the central propositions in support of the relevance of this witness are firstly……….. perhaps I should just clear up her job. I thought I had made that perfectly clear. She is the managing editor of Disarmament Diplomacy based in London. The central reasons why she is relevant is firstly she will speak to the nature of objective facts on the 8th June l999 and she speaks to the central issue of the perception by foreign governments of threats from the British Trident missiles. She just was about to answer in the affirmative I think my last question which was that she spends her time on the workings of governments at top level since the ICJ opinion. She will speak to the realities of what is meant for instance by the President of the Court when he addressed the question of or the matter of tightening up what was meant in some of the Treaties which have been mentioned. That is one of the things which the ICJ did. That is not surprising, given the developing nature of international law. She is expertly and perhaps uniquely qualified to speak from an independent point of view. She is independent. On a central matter which the Crown raised when cross-examining the first panel, Miss Zelter, and that was why don’t you stand for Parliament and try and change things from within. Of course, the answer to that was we have stood for Parliament but this witness will speak to the realities of how Trident came into being, how it has been….. or which policies have been enforced during its lifetime, what policies were in force on the 8th June and relate that to, as I said, the perception of other nations of the threat. She will speak to the essential support system required by Trident, some of which are supplied by GIRA, including Maytime. The actual workings of Maytime are outwith her area of expertise. She is, as my friend says, not a scientist, at least not in the world of physics which might be regarded as a political scientist. She is very well qualified to speak to the targeting of British nuclear weapons and she also speaks in as much depth as one can wish for on the whole issue of the balance between the nuclear fraternity and the rest of the world.
I am prepared to restrict my line of questioning in that regard but I have no intention of leading the jury down a course of history. I am interested in the bullet points if I can put it that way in trying to demonstrate the relationship between what the accused are indicted for and why they did it.
It was my friend the Fiscal who raised the issue of deterrence with Professor Rodgers. This witness will also speak, if allowed, to the issue of deterrence, once again in short compass if appropriate. There was no objection I think at least in my initial stages of questioning of Professor Boag on Friday as to what the National Ignition Centre in America was and what its functions would be as they relate to the ongoing development of research into nuclear weapons. This witness can speak in depth about that. Professor Boag couldn’t, in fairness to him, speak in depth about that.
But, my lady, for my part, having been allowed Professor Boyle and reference having been made to, in front of the jury on numerous occasions throughout this trial by both the Crown and the Defence, to the ICJ opinion, it is proper and relevant, in my submission, to lead a witness who can explain the practicalities of what is meant at certain key parts therein.
So, from her evidence about the state of concerns at the very top level in the world on the 8th June 1999 through to the support of other expert witnesses and rebuttal of key areas raised by the Crown, in my submission this witness is wholly relevant. I am obliged, my lady.
SHERIFF GIMBLETT: Mr. McLaughlin?
MR. McLAUGHLIN: My lady, I would adopt everything my learned friend has said in his rebuttal of the Fiscal’s objection. My lady, this is a case where, in my submission, each of the Defence witnesses form a critical strand in a proper presentation of the Defence case. It is in sharp contrast essentially to the position in the Helen John case which has been referred to before in this case and that was a case where there was no such experts led before the court so that the court, in effect, could not be assisted by their evidence. Lord Coulsfield in that case said that basically there was no line of authority or reasoning to support a number of the propositions but in particular that the possession of nuclear weapons is criminal under Scots law.
As I have submitted, my lady, part of the Defence case will be is that what the British Nuclear Strategy is vis-a-vis Trident 2 nuclear weapons systems, it is no mere possession. It is as the ICJ’s opinion in 1996 phrased it “threat to use Trident 2”.
If I could perhaps deal with the point raised by my friend about the charges on the indictment. Again, I repeat, for the sake of brevity, that was as close as they could get to the core of Trident 2 weapons system. In Helen John it was a fence. In this case it was a laboratory researching, amongst other things, sonar and aniconic tiles which is essential for making Trident invisible. So, in my submission, my lady, there is a link between what happened on the 8th June and the integral part of the Trident 2 weapons systems programme, more so than a fence, my lady. It is closer to the heart of the system.
My lady, the International Court of Justice says, amongst other things, that one of the critical things that they said was in Article 6 of their opinion where it reinforced authoritatively the obligation to pursue in good faith and to bring to conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.
My lady, Britain is operating a laboratory testing system which researches and designs advancements in the existing weapons programme. My lady, that flies in the face, in my submission, of the World Courts position and, further more, this witness can speak to that. She can also speak to the Comprehensive Test Ban Treaty which is in contra-distinction to what Britain is doing with laboratory testing. This Treaty, in effect, is an attempt to eliminate such testing but yet Britain is doing it. So she is not an international expert, the international expert is Professor Boyle from America, but she can speak to the international court judgment, opinion, because she can track it to the present date from 1996 and she can say in what ways this country is failing to live up to the requirements of the ICJ and in what way Britain is failing to live up to the various Treaties in relation to testing (inaudible) in contradiction to the various Comprehensive Test Ban Treaties and Non-Proliferation Treaties.
The practical effect of all of this is that the accused in this case had an objective background, they claim that in international law they had a right to do what they did. The documents that I have referred to are public documents. The writing is an analyses of where Britain has gone since the Treaties were signed and the decision given down and in my submission are in a public domain. The accused are greatly concerned by the direction in which British nuclear policy is going so it fits in, in my submission, neatly with this picture that the accused had not only the legality and illegality and criminality or threat to use, not just after the World Court decision but pre that because of Nuremburg and the various other Treaties that I will address the court on in due course. In my submission, the ICJ decision formulates into one document on what was already international law pre-1996 but, for the avoidance of doubt, it answers the question posed.
The two matters, the two chapters rather which this witness in my submission will specifically speak to are those dealing with the aspects of British nuclear policy undermining the NPT because, my lady, that would indicate to the jury that it is indeed threatening to use nuclear weapons. It is anticipated that this witness will say that policy documents from British and American officials have indicated that there is a distinct role for Trident against states believed to have acquired chemical or biological weapons and that is, in my submission, a breach of the NPT whereby nuclear weapon states promise not to threaten to use nuclear weapons and it is a breach of the World Court’s ruling. So that again is information which the accused had. This witness can tell the jury what the information was and the jury can, in my submission, subject to a direction determine whether or not British nuclear policy amounts to a threat to use.
Again, in Helen John none of this was available to the court, my lady. This witness can also deal with what is contained in Chapter 4 of her document which the Fiscal has and that is nuclear targeting and the nature in which or the way in which that targeting happens, the recipients of the threat, what they feel is the threat to them and again she can talk to matters such as, to use a technical phrase, counter value targeting. For example, that would be bombing television stations, bridges, factories and so on, which would, in my submission, be what she would say is part and parcel of Britain’s key two strategies. That is the threat and how that would tie in with the Defence submission here that it is impossible to have such targets, to threaten such targets and to comply with international humanitarian law because obviously that prohibits indiscriminate killing and maiming of civilians. So without her, my lady, we cannot properly demonstrate to the jury that issues such as counter value targeting, issues such as targeting nations with biological and chemical weapons. She will mention Moscow, my lady, as a target. These issues, in my submission, are in the public domain. Perhaps people are apathetic and they don’t read about it day and daily but the accused have read about it and that has formed their mens rea in this case and that is the critical point. My lady, for clarity I ought to say lack of mens rea.
My lady, this is not a sort of wander through the cold war as it were because that would be, in my submission, irrelevant. I think my lady has already ruled on that but again and yet again this goes to the mental state of the accused and it also gives the jury and the court an opportunity, unlike in the Helen John case, to hear from an expert who can talk about threat to use nuclear weapons and the targeting of nuclear weapons and circumstances in which either or both happen and, in my submission, how that breaches international treaties, international law, and how Britain’s Trident 2 systems programme is contrary to the requirements of the International Court of Justice. Although she is not an expert in international law, she is a practitioner in this field, my lady, and accordingly is relevant.
SHERIFF GIMBLETT: Miss Zelter?
THE ACCUSED ZELTER: I agree with the other two advocates. As you are aware, I am using the international law defence and one of the things that I have to show is what is the crime that we were trying to stop on June the 8th. One of the crimes that we were trying to stop was a crime against the peace. These are actions done by states which are in violation of treaties and conventions. I need an expert to explain how the current UK deployment of Trident and its deployment on June the 8th is, and is perceived by the foreign ministers of the UN nations as a crime. Not just how an international lawyer might academically perceive this but how in practice foreign ministers actually perceive it. Our action on June the 8th was part of the long process of trying to implement the ICJ opinion. ICJ advisory opinions need to be implemented and in fact well over 90 per cent of the ruling from the ICJ opinions are implemented eventually. The (inaudible) perceptions and pressures in the international consensus (inaudible) on the necessity of international law and order. She can speak to these perceptions.
In response to the Procurator-Fiscal, our international law covers the aiding and abetting, planning and maintenance of whole systems, not just the specific delivery system like any Trident submarine. These treaties deal with complex systems which includes (inaudible) laboratory complex in Loch Goil between (inaudible). She can speak to this.
She also influenced me personally about the ever-present danger we are all in with the continuing active deployment of the complex Trident system. I have consulted with her widely over the last three years. For instance, in order to make sure our criteria for stopping the TP 2000 Campaign were in line with present international negotiations but also so that I would be in touch with the consequences and ramifications of crises as they arose like the Iraqi, Korean, Indian/Pakistani and Kosovan/ Serbian crises which are active at the moment. I had all this in mind on June the 8th.
MR. WEBSTER: Can I deal with various of these points, my lady?
SHERIFF GIMBLETT: Yes, certainly. Mr. Webster, several if not all of the submissions made by the Defence have referred to leading evidence called the perception of foreign governments or foreign ministers of the British Trident system. In my submission, that would be objectionable because it is hearsay. These people are not here to give evidence. I would not have an opportunity to cross-examine them. All they would be hearing is one witness’s perception of what other persons who are not witnesses’ perception is alleged to be. So far as evidence about nuclear testing is concerned, I would submit that it is irrelevant. There is no suggestion, and it has not been put as a suggestion in cross-examination by the Defence to date, that Maytime was testing nuclear weapons. Indeed, all the questions put to Mr. McPhee were along the lines that it carried out research in relation to sonars, acoustic matters, the sending out of signals and getting a response when that signal is bounced back. It was said by my friend, Mr. Mayer, that the Crown and the Defence made many references to the International Court of Justice opinion. Well, the Crown did not have any choice in that matter since it has been raised by the Defence and in effect from the point where Professor Boyle’s evidence there had been evidence led by the Defence. So obviously the Crown have to address and deal with the issues which are led by the Defence. It doesn’t mean to say that the Crown concede they are necessarily relevant or indeed have any force in the matter. That is a matter which of course is to be decided later on in the case.
It was said that she could speak to a matter which I raised in cross-examination of Miss Zelter, namely why don’t people stand for Parliament when they have these views. I don’t see this witness is going to be any more expert in giving evidence than perhaps myself or any other member of the public would be.
It is also said that she will speak to the realities of what is meant by the President of the Court who addressed tightening up these treaties. Well, that is all very interesting but what has it got to do with the charges on the indictment? If she is not a solicitor, an international legal expert, she can’t in my submission add anything to the terms of the judgment or any legal conclusions that can be drawn from it.
It is said that she will speak on the legalities of how Trident came into being. Again, I challenge the relevance of that, my lady. The fact is that Trident is and was in being on the 8th June.
It is said that she will speak about policy in the early days of Trident’s life. Well, again, my lady, I challenge the relevancy of that.
Yes, it is said that she will speak to the establishment of support systems supplied by or supplied to Trident and I think Miss Zelter also alluded to that with a specific reference of Maytime. Well, given what we have heard of her expertise, she is not a scientist, it is not suggested she has ever worked in any capacity with any armed forces. I would suggest that she wouldn’t have the expertise to give such evidence. I would certainly object to any such evidence.
It is said that she is qualified to speak to the targets of nuclear weapons. Well, my lady, I think again I would challenge the relevancy of that. The ICJ and their opinion quantum valeat clearly have taken into account these matters, namely targets, capabilities and the like.
She will speak on the whole matters of the balance between the nuclear facility and the rest of the world. Again, my lady, I would challenge the relevancy of that.
In relation to the ICJ’s opinion in particular, for her evidence to be relevant in my submission she would have to speak to matters of legal interpretation which in my submission she is not competent to do and if she speaks to other matters, namely why they arrived at particular decisions and whether a particular treaty should or should not be tightened up, in my submission that is irrelevant. The Defence’s position is we have the ICJ here, here is what we say it says and therefore threat and use of nuclear weapons is illegal and they develop an argument to say and also possession. That is fair enough, my lady. Obviously the Crown don’t accept that but whether particular judges thought treaties should be tightened up in my submission is irrelevant.
MR. MAYER: Could I just say, my lady, that on the question of hearsay this is an obvious expert and she is excepted from the rule of hearsay.
SHERIFF GIMBLETT: Well, I think I would like to, if you don’t mind, retire for say 10 minutes or so and there is no doubt the jury will be at (inaudible) and I will come back as soon as they are ready to come back. I would like 10 minutes away from the heat of the court if I can put it that way.
After an adjournment.
SHERIFF GIMBLETT: Thank you very much for giving me the time to think over what you have said. I think this witness may be in a slightly different position from the others as you had indicated and I am going to repel some of your objections, Mr. Webster, but I agree with some of the things you have said.
Now, I am not going to allow evidence to be led from the witness to happenings before the 1996 ICJ opinion and I mean by that the Nuremberg principles, all the treaties that were considered by the ICJ.
Having read the opinion and indeed the dissenting opinion, the International Court of Justice looked at all these treaties and indeed everything that led up to their sitting down to consider matters and that indeed was recognised by the Court of Appeal in this country in the Helen John case.
But I will allow evidence so far as it relates to the ICJ opinion on, and not necessarily in order of importance (l) What Britain has done since 1996 to carry out their obligation at paragraph F of the opinion, to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament. That is if she is able to speak to it because I think this does possibly form part or could form part of the defence of necessity as perceived by the three accused, taking into account why they did what they did and all the options open to them on the 8th June.
Secondly, the question of what is perceived as a threat. I agree that Dr. Johnston does indeed seem to be an expert and from what we have heard, and I may be wrong, she has spoken directly to world leading statesmen and the question of a threat is I think crucial to the question of legality or illegality of Trident and nuclear weapons and whether Britain was committing illegal acts at the time of 8th June.
I would like to know what is considered to be a threat. Is it only when there is a direct threat as when a country gives an ultimatum or alternatively Trident submarines are seen outwith their normal places of deployment. Is it only a question of a direct threat and, if so, when did such threats take place or does the word threat encompass informed, perceived threats although on this point I do share some of the Crown’s reservations and I think the questions have to be carefully framed.
Three, I will allow any oral evidence this witness can give on indications given to her personally by those representing various states as to whether on or about 8th June and not after necessarily the use of nuclear weapons could be considered lawful in an extreme circumstance as self defence on which the very survival of a state would be at stake. If she has such an opinion, was it in the public domain or passed on to Miss Zelter or her two co-accused prior to 8th June and, if so, when.
Five, bearing in mind that for a defence of necessity to be relevant, in addition to the imminent danger aspect, I will allow evidence to be given if she is able to on what, if any, stimulus existed on or shortly before 8th June which would allow the three accused to act as they did and in this connection perhaps more particularly how is Maytime in particular linked to the deterrence of Trident 2.
Six, I will allow evidence if this witness is able to give it to comment on what steps Miss Zelter and her colleagues could have taken other than what we know two of them had done because of course they have not yet given evidence which would have prevented further deployment of nuclear weapons, including the whole question of whether standing for Parliament might have helped.
So far as targeting is concerned, and this is Point 7, I share the Crown’s reservations but will allow evidence only in so far as it was known it was actually in existence on or about the 8th June. That is if this witness can speak to this and if not directly covered in any of the other points made above.
Eight, in so far as not covered above, and only as it relates to the question of threats being made as at the 8th June or other matters above including the Nuclear Proliferation Treaty, I will allow evidence if this witness is in a position to give it to the relevance of the dedication on or about I think the l4th June is the date given of the National Ignition Centre and again only so far as it is in the public domain and so far as not allowing evidence to be given in addition to the first point I made, I am not prepared to allow evidence to be taken from this witness upon the realities as I think it was put of how Trident came into being.
MR. WEBSTER: Is that Point 9, my lady?
SHERIFF GIMBLETT: It is Point 9 but it relates, if I can say, to the very first point about what I would not allow so I am going back if you like. I am not allowing evidence on the realities of how Trident came into being. I cannot see the relevance on that.
I am not going to allow evidence to be taken from this witness on her interpretation of the IJC opinion and nor am I going to allow evidence on what I think was referred to by the Procurator-Fiscal as a whole balance of nuclear authority and the rest of the world except in so far as particularly mentioned above on the evidence that I would allow.
I would ask Miss Zelter and her two legal colleagues if I can put it that way to bear in mind the legs of defence which I understand are firstly Trident is illegal, secondly the defence of necessity and not to indulge in looking at a much wider picture which may not be necessary for the purposes of this trial. In particular, I would ask also that this trial be not used for the purposes if you like of a soapbox for promoting nuclear disarmament which I am sure is not the intention of the accused but at times it is becoming that way and in particular I would ask that you limit the use, wherever possible of any theatrical devices if I can put it that way at its highest of just some of the things you have said, Mr. Mayer, where it may be………. I am trying to think of exact examples and I am saying this while the jury are out but perhaps it gave a bad impression there and there is a heightening of some of the evidence, perhaps unnecessary. I understand why you are doing it but in this particular trial I don’t think it serves a particularly good purpose. There is so much emotion on the effects of nuclear weapons and the like. I think we have to be very objective. That is all I have to say at the moment.
MR. MAYER: My lady, having been personally criticised from the bench, I shall of course rein in any personal techniques which I…..
SHERIFF GIMBLETT: I understand why you do it. It is not so much a criticism as I don’t think it is necessarily appropriate in this trial.
MR. MAYER: Very much obliged, my lady.
SHERIFF GIMBLETT: But I have noticed a slight adverse reaction in some areas so I am putting you on your guard as it were. I would not like it to reflect or deflect on your client or anyone else.
We need someone to bring in the witness. I don’t know what has happened to my bar officer.
MR. WEBSTER: She has gone for the witness, my lady.
SHERIFF GIMBLETT: Has she? All right then.
Upon the return of the jury and the witness.
THE WITNESS: Yes.
MR. MAYER: I am obliged, my lady.
EXAMINATION CONTINUED:- Miss Johnstone, are you familiar and with a document which is being produced in this case, and which I have in my hand and — and I trust you can see — which is the International Court of Justice advisory opinion of the 8th July 1996? — Yes I am
Was this document any kind of landmark in your field of work? — Yes it was. It was principally because one of the conclusions which was unanimously adopted by all of them members of the International Court of Justice…
We will come to that in due course. Just for the purposes of clarity I should clear up any misunderstanding which may have arisen. Would it be fair to say in so far as you have one your employment is as the managing editor of a publication called “Disarmament Diplomacy”? — Actually I am a director of the Ackerman Institute on arms control which publishes “disarmament diplomacy”. So, I am a director and am the managing editor of Disarmament Diplomacy. Our institute is a small research think tank which was registered in January 1996 in London, but did work before that.
So, in layman’s language are you the head of a think tank? — Yes.
Could you have this document in front of you please, which forms part of the productions for the first panel, my lady. Could you please turn in my copy two pages from the back? — Yes.
Are we at paragraph 105 which begins the page before — do you see that? — Yes I do.
Can you find the page we were on, paragraph 105? — Yes.
And do we see that paragraph 105 has in brackets a heading of No. 1, No. 2 and number two is then headed A B and C? — Yes.
If we turn over the page, please, we there see D, E and F? — Yes.
I want to restrict my questions, and your answers therefore also, to paragraph F. Could you please read what it says under paragraph F? — “Unanimously — There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”.
And do I understand you to be a recognised expert in the kind of negotiations which are mentioned in that paragraph? — Yes I am.
So, just so that we are clear, do we understand that the Court — if we turn back to 105 — without going into any of the other headings there, do we see that the court made certain findings at particularly 2 A, 2 B, 2 C, 2 D and then 2 G? — Yes..
F seems to stand alone in that group. Would you agree? — F and D.
Well if we leave D alone? — Well, if we leave D alone, then F, yes, had been unanimous by all the members of the Court and that would seem to stand out.
Have you read this paragraph before? — Yes I have.
How soon or long after the issue of this opinion of the Court did you read it? — Probably within 24 hours, and certainly it was presented to the Conference on Disarmament in Geneva which is the negotiating body of the United Nations system for negotiating on arms control, and it was presented to the Conference on Disarmament in a plenary session.
What does that mean? — The Conference on Disarmament had some sessions which are plenary and open to representatives who were not members of government such as myself.
So, you get into the plenary ones? — Yes, that is right. And then they have closed sessions where I am not able to be there directly, but usually members of delegations come out to tell me what is happening. However, this was presented at the full official plenary meeting of the Conference on Disarmament actually by a number of different countries over the course from 8th July until conference closed in September. If I could say, also it was the subject of a resolution to the United Nations General Assembly that same year, and has been quoted in subsequent resolutions to the United Nations General Assembly since then.
So, do I understand you to be saying the United Nations having asked the court for advice, the court having given its advice in this document which you have in front of you, the United Nations was anticipating the issue of this document because otherwise it would be a coincidence that there was a conference within a day or two? — No, the Conference on Disarmament in Geneva runs from February to September every year basically throughout the year and is one of the conferences I monitor which is why I am in a Geneva a great deal, and when something like this happens, then it is fairly quickly — if it is sufficiently significant — and this clearly was regarded as sufficiently significant — it is taken up and then presented into the Conference on Disarmament as either part of a statement by one of the countries or as an official document.
Which is this? — This was definitely part of a statement by I think — the Italian advisory opinion was also made an official document by request from other countries.
Now, what the ladies and gentlemen may be wondering is whether when the UN seeks the court’s advice — this ICJ we keep talking about as the World Court and advises the UN — when advice is sought and given, is that advice taken seriously? — It is taken very seriously indeed.
By whom? — By the International Court and in this case for example the resolution went to the United Nations General Assembly — I’m so sorry. When the resolution went to United Nations General Assembly, there were over 115 votes in favour of the whole resolution on that occasion, and on that occasion the British government voted against.
Against taking the advice? — Well, against endorsing and in a sense against accepting that this is now part of the international legal understanding of the treaty obligations. This particular paragraph mirrors that but it does not exactly reproduce the language of article 6 of the Non-Proliferation treaty which as I say Britain signed and ratified in 1968.
Thank you. Now, moving on, would you agree that this paragraph F is a call — we hear about people calling for a lot for things these days — is it a kind of call by the Court for negotiations to be pursued in your opinion and bring to a conclusion? — I would say rather than the Court it is our interpretation that the existing law means that the negotiations should be pursued in good faith and drawn to a conclusion.
Thank you. Now, I want to ask you some questions, please, about these negotiations? — Yes.
First of all, which parties would take part in these negotiations? — With the Non-Proliferation treaty there are now 187 countries all the world who are parties to this treaty and only four countries which are not. So, when there are negotiations as part of this treaty process which continue — because there are periodic reviews where they examine how well the treaty has been implemented and what more needs to be done in order fully to implement it — and these meetings take place on a regular basis, and as I say I have attended each one since 1994. Those are open to all 187 countries.
Is it representatives of countries, not private individuals? — No, members of countries as countries, and probably about 120 or 130 actually attend because a few smaller countries do not have the resources to attend the meetings in either New York or Geneva. Now, the Conference on Disarmament which is the negotiating body on negotiating chemical weapons treaties, and also the Comprehensive Test ban treaty that I spoke of earlier — that now has 66 members.. It is a more limited number in order to do the negotiations, but all the key countries — what are considered to be the key countries in international legal political economic arena — are included there.
Which are those? — Three countries are not members of the Non-Proliferation treaty — India, Pakistan and Israel.
You mentioned there a kind of core group. Which countries form part of that core group? — Britain is definitely one. The United States, China, Russia, France and also countries like since apartheid South Africa which gave up its nuclear weapons and then joined this treaty only in 1992 as a non-nuclear state but since then have pushed very hard for full implementation. Countries like Brazil, Germany, Japan, the Netherlands and as I say, India Pakistan and Israel are part of the smaller negotiating body.
So, we have got a kind of core group. We have a wider group who take part and some countries I understood you to say — a handful of countries or so — are too poor to send someone to New York? — Yes.
Now, I want to focus please on what the United Kingdom has done since the publication of this document to carry out its obligations which are mentioned at paragraph F and at the moment I want to focus on what the UK has done about answering this call as I have put it. Can you please take this slowly? — Yes. As I mentioned, in 1996 the UK voted against this paragraph in a resolution sponsored by Malaysia and did so — it was one of 26 countries that voted against. The following year, after there was a change of governmentà.
Let us get this straight. You mean that in Britain in 1997, there was a change of government? — A change of government in May 1997, and when a very similar resolution was brought to the United Nations in December of 1997 Britain switched its vote from being against this paragraph to abstaining and altogether 152 countries voted in favour.
Please pause there for a second. I want to be clear about the meaning of this word “abstaining”? — It is a curious step because it is interpreted as meaning that Britain accepts the validity of this unanimous opinion of the International Court of Justice but the particular paragraph of this was a resolution calling for further steps to be taken.
I think I understand, yes? — So that Britain wanted to vote against further steps being taken, but actually didn’t vote against further steps.
When you say steps do you mean further negotiation? — Yes, various further steps were suggested — things like taking nuclear weapons off (inaudible) alert, committing not to use nuclear weapons first in conflict, and to negotiate towards an instrument such as a nuclear treaty to ban nuclear weapons like those treaties to ban chemical and biological weapons. So, these were steps identified in the entire resolution, and so it would be unusual to actually vote against — I’m sorry, to vote for a paragraph and then to vote against the whole resolution. You can vote for a paragraph and abstain on a resolution. So, by switching its vote to abstaining on the paragraph, the interpretation given to it by other countries, who considered this an important shift actually, was that the new British government as it was then — the current government — accepted the validity of this unanimous opinion of the advisory Court, the advisory committee of the International Court.
If I can just try to summarise this — and correct me if I’m wrong — is it the previous government to the one we have at the moment voted against these steps? — Yes.
With the change of government in May 1997, and the present government moves — it does not do a U-turn as it were, but it goes into a kind of neutral zone. Would that be fair? — Yes.
So? — It takes quite a significant political decision.
We will come to that in a moment, but there is a for Zone , an against Zone and a neutral Zone in the middle. What you’re saying is that the British government position previous to 1997 was in the against Zone? — Yes.
And with the change of government there was quite a significant move — quite an important step — to come into the neutral Zone? — On this advisory opinion that there exists an obligation under law, yes.
That puts it in fairly simple terms. The middle line of paragraph F contains the words “after negotiations leading to nuclear disarmament”. I want to ask you, please, if in your opinion firstly the British government has since the advisory opinion entered into negotiations in good faith. Has it? — It has gone into negotiations involved in negotiations on the test ban treaty at the time of the advisory opinion.
I really want to know whether it has been in negotiations in good faith? — In fact not, no.
Why not, if you can be as simple as you can, please? — Two reasons: one, which is the British government fault and one which is not. The strategic Defence Review in which the government analysed its defence requirements and reported in July 1998 — so, a year after the government had been in power — the strategic Defence Review emphasised that Britain would need to rely on Trident or a similar force for the foreseeable future.
What does “foreseeable” mean in your world? — If you rely on something for a foreseeable time it means that you don’t seriously imagine doing without it, and this term “foreseeable future” has been a source of —– if you rely on something called a “foreseeable future” it means that you cannot imagine doing without it, and this particular term which the British policy statements have used a great deal in the Conference on Disarmament and the United Nations and various negotiations, has caused a lot of concern and criticism among the 182 countries which join to the Non-Proliferation treaty pledging that they would never seek to acquire nuclear weapons for their own security. That is basically what the treaty says. There were two kinds of commitment there: one was if you didn’t have nuclear weapons by 1967 you promised that you would never try to get them, and you accepted a set of verification and legal obligations, but five countries — Britain, France, China the Soviet Union as it then was, now Russia, and the United States — were identified as already having got nuclear weapons. So, as part of this treaty their commitment and obligation was that they would in good faith seek to end the nuclear arms race and pursue negotiations leading to nuclear disarmament. So, 182 countries promised they would not get weapons, and five countries who had then said that they would get rid of them.
Now, Britain was one of the countries which had them? — Yes.
That the court at paragraph F unanimously decides that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control? — Yes.
Has the British government since the publication of that document initiated any conferences or moves to reduce its nuclear capability? — Again this strategic Defence Review in 1998 did confirm that they would not deploy more than 200 warheads on Trident.
Nuclear warheads? — Yes.
They would not deploy any more than 200? — Yes.
At any one time it is 200 as a whole, the whole fleet. Full deployment assumes three boats in active service and one on refit. So, the basic picture was that they would deploy 48 nuclear warheads of 100 kilotons.
We understand that phrase now? — So, yes, 48 per boat. They had been asked — but did not agree — not to have the boats actually under constant deployment, and they were also asked to consider undertaking a commitment not to be the first to use nuclear weapons in a conflict, and they were asked to consider taking their nuclear weapons off alert so that they would not be within this kind of 15 minutes hair-trigger kind of alert status.
Did they agree to that? — They did not agree to either of those things, but what they did say was that Trident would be on a reduced notice to fire.
Now, please stop there. I’m trying to establish whether the British government has taken any steps to pursue negotiations called for in this opinion. What you have told me is that they seem to have — the British government seems to have initiated of its own accord a reduction in the deployment of the number of warheads. Would that be correct? — Yes.
Down to 200? — Yes.
100 kilotons each? — Yes, although as part of the discussion of wanting a sub-strategic role, there is the possibility of deploying a much smaller warhead for specific roles like Malcolm Rifkind talked about, a shot across the bows or a warning shot.
Of a nuclear weapon? — Of a nuclear weapon.
Now, do we understand that Britain initiated a reduction from this to this 200 warheads. Is that right? — Since the end of the Cold War…
I’m afraid I want to know the situation? — What you have to appreciate is they did not do it as part of negotiations. They did it as a unilateral step when this new government came in.
But the new government would be very well aware I imagine of the ICJ opinion? — Absolutely.
Now, do I understand from the rest of the answer you gave to me that requests were received by the British government to go further than just reducing the number of warheads that they deployed. They were asked to do things you mention, but they refused? — That is right. This is where the importance of those United Nations General Assembly resolutions comes in.
Please stop there. What I’m interested to know is when these requests came in, whether they simply refused, or they negotiated? — They voted against.
Did they negotiate? — They voted against any of those additional steps and in addition to the resolution I mentioned there were two or three others.Japan has a resolution which calls on all five nuclear weapons states to work together in bi-Power talks to reduce nuclear weapons. There is a group of countries which includes Ireland, Sweden, South Africa, Brazil, Egypt and Mexico and New Zealand which have tried to put in a very much more moderate resolution than the Malaysia 1. It also has a paragraph referring to this ICJ unanimous opinion. The first time this resolution was put in the United Nations General Assembly was the last year assembly. On that occasion Britain again abstained on the particular paragraph that quoted the ICJ advisory opinion, but voted against the rest of the resolution, although there were 118 I think countries which voted in favour, and at that time Britain also took a very active role together with France and the United States in basically arms-twisting of Nato countries to vote against this resolution. The resolution called for steps like de-alerting.
So, the last part of what you mentioned — you use the word “Arms” in the plural. Did you inadvertently use the plural where you might otherwise have used the singular when you talk about arms-twisting? — It was the arm-twisting of many Nato countries.
We’re not talking about twisting arms as in weapons? — No.
You’re using a metaphor? — I was using a metaphor for extremely heavy pressure. In New York where I was monitoring this hearing, and sending high-level delegations to the capitals of the Nato countries and Japan, some of which wanted to vote for this resolution. In the end, because of the very heavy pressure from Britain, France and the United States 12 out of 16 Nato countries abstained rather than voting for, but nevertheless they did not obey what they were being told to do which was to vote against.
Told by whom? — Told by Britain, France and the United States, the three nuclear countries who basically run Nato — only Turkey joined the nuclear countries in Nato.
What I would like to know — and no doubt the ladies and gentlemen are wondering here — is how you get this information. How do you know about high-level delegations going to Nato country capital cities and what happened when they got there? — It is my job. I speak on a regular basis with the ambassadors, with people at the foreign ministries and as part of some of these meetings I attend seminars and brief them on what is happening and they are briefing me. In the margins of these conferences like in New York, Geneva I’m constantly sitting down with people and they tell you what is going on, raise concerns if that is appropriate, and so on. Then I would get it checked out.
Do you publish the information which you receive in this way? — I publish some of that. I publish an analysis based on that information in various books and reports and in that the monthly journal “Disarmament Diplomacy”. I don’t usually name names because that there is a certain amount of it is off the record in how an ambassador might tell you something.
I understand that. What would happen to your standing in this very high level community if you suddenly made things up? — I would have no standing. The diplomats themselves read avidly what I produce partly because I am able to give the big picture, the whole picture, and because I talk to everybody right across the political spectrum, and so in the event that I do get anything wrong — and once or twice I have — they immediately will come and tell me and I will correct it in the next edition. That is the only way I can deal with credibility.
You have given us one clear example of the kind of negotiations which do go on and have gone on since the publication of the ICJ opinion. Rather paradoxically it seems your evidence is that Britain together with France and America seem to negotiate with the other Nato countries, but as I understand your evidence — please correct me if I’m wrong — the negotiations did not seem to — the pressure you were talking about on others did not seem to be about nuclear disarmament at all? — That is correct. They were trying to get the Nato countries to vote against any steps that could be taken individually and collectively by the five nuclear weapons states to reduce their reliance on nuclear weapons.
But that is not what the International Court of Justice seems to have been asking for? — No, it is not, and it is also not what the Nuclear Non-Proliferation treaty places as a legal obligation. One of the reasons why the International Court of Justice has the phrase “and bring to a conclusion” which is not part of article 6 when the treaty was adopted in 1968, is precisely because 30 years after the treaty went into force you still had more than 40,000 nuclear warheads in the world. You still had countries like Britain coming out with strategic defence reviews which said that they would retain Trident or something like it for the foreseeable future. You had statements at the time that the non-proliferation treaty was extended in 1995, which is a very crucial period of time — you had statements — if I can quote an example — of Venezuela saying that when that the negotiators said negotiate in good faith they could not have meant leaving it 30 years, and Bangladesh who said that it was a grave concern to them that countries such as Britain were continuing to say that nuclear weapons were essential for their security while at the same time trying to persuade and compel other countries to join the a treaty which meant giving up any option to acquire or develop nuclear weapons. The Bangladesh situation I think is important because just a couple of years later we saw an example of this advertising billboard where India and Pakistan conducted nuclear tests and the ambassador for Pakistan in my hearing in a conference on disarmament has looked across to the UK ambassador and said “merely following the example of our former colonial masters” when he talks about how Pakistan will now rely on nuclear weapons and will also rely on potential first use. India for its part has always juxtaposed and said, “we are a large populous country. We have very serious security concerns. So, if you say you need them, then you are telling us that we definitely need them” and the choice for India — and India has repeatedly said the choice for them is either everybody gets rid of their nuclear weapons and if that happens they will join the Non proliferation machinery, or that they require nuclear weapons for their own national security.
So, to try to sum this up, in your opinion what if anything since the publication of the ICJ advisory opinion has the British government done to negotiate in good faith, to bring to a conclusion nuclear disarmament? — It has helped to conclude a treaty that has been on the books for almost, more than 40 years.
Which one is that? — The test ban treaty, and they did have to conclude that and they were one of the first to ratify that, and it made the commitment about the number of warheads, but it has rejected any approaches for taking steps either with the other nuclear weapons states or in a multilateral context to reduce reliance on nuclear weapons. I should add that Britain has been among the countries that supports negotiations to ban the production of missile materials which is plutonium and highly enriched uranium that is used for bombs, and after 1996 Britain has been I should say a strong supporter of trying to get those negotiations off the ground, but the trouble with that is Britain does not want — is prepared to make no more production but it does not want anyone to touch the stockpiles of what is already produced, and India and Pakistan and Israel — I should say Pakistan in particular — and a lot of the non-nuclear countries have been saying that, yes, they want this treaty but they should not freeze the nuclear status quo. It should also look backwards to have measures to reduce and ultimately eliminate the actual existing stockpiles which have been produced over many years.
If we were to try and phrase that in common language might it be described as a situation where countries which don’t have the materials to make nuclear weapons rather point the finger at Britain and say “it is all right for you to start this treaty in a worldwide ban on the making of material which is needed for nuclear weapons. You have got plenty of your own already”? — That is it in a nutshell.
After an adjournment for lunch.
EXAMINATION CONTINUED BY MR MAYER: — Miss Johnstone, I want to move on please to the topic of the perceptions amongst those with whom you deal professionally, and I would be obliged if you would restrict your answers to reference to people such as ambassadors, foreign ministers, prime ministers and people of that calibre. I think you have told us that you regularly meet most of such high-level people in the course of your work? — Yes (inaudible).
You told us about the core group, the wider group and the poorest nations. I’m interested in the wider group. Over the last three years can you tell me — let us stick now to conferences which are as it were the plenary ones which are open to everyone? — Yes.
Have you experienced high-level people I have mentioned discussing the idea of being threatened by nuclear weapons? — Yes.
You have? — Yes.
You don’t have to give me a long list, but please give me a three examples of this happening in open session as it were? — For example, Japan very often starts statements on issues by reminding the delegations to conferences that Japan is the only country to have suffered nuclear bombing by intention in time of war, and that it wants to ensure that this can never happen again to anyone else.
Thank you. Another country, please? — South Africa — they themselves developed nuclear bombs and when the new government came into power — in fact just before, but in the transition towards government headed by Nelson Mandela coming in, South Africa at that point got rid of its nuclear weapons and facilities and has made a number of statements directed towards countries like Britain and other nuclear weapons states saying ” the very possession of nuclear weapons by them threatens the rest of us who have given up the option”.
Third country, please? — I could mention any number of countries in Africa and Asia including countries like — in fact Sweden and Ireland have both come out quite strongly on this. Egypt has referred to being threatened by nuclear weapons.
And as you have explained, because you are independent as it were, I think you told us about being approached by ambassadors and the like to find out what is going on. Is that the position? — Yes.
And that was because often they don’t speak to each other for these reasons? — Because they are limited in what they can say to each other.
Could you give me three examples of other countries who have made these protestations of effect to you outwith the open meetings? — Oh yes. Algeria has spoken of feeling under threat because France still retains nuclear weapons, even although Algeria believes they are not directed against them.
If you can restrict your replies to the threat from United Kingdom? — Oh, China very definitely and in the wider sense rather than feeling that they are directly targeted by British nuclear weapons a number of countries such as Malaysia, Indonesia, the Philippines and including again the African countries and Japan have referred to a continued possession of nuclear weapons by countries such as Britain having a policy of threat to them because they act as invitations to other countries to acquire nuclear weapons.
I see. Thank you. Now, can you give us some real life practical examples of an incident where any of the countries you have mentioned — and any other you can think of — reported to you their perception of a threat from British nuclear weapons? — Yes, concerns have been raised that Britain violates the Non-Proliferation treaty and therefore undermines…….
I’m interested, please, in any particular incident which might be in the public domain? — OK. Actually, this does relate back to a week ago to an Argentinian diplomat who wanted to know if Britain had at any time considered deploying nuclear armed vessels at the time of the Falklands war. I actually could not give him an answer. I’m not sure. I have heard this.
We don’t want to know about rumour? — No. In the Gulf war, however, there is evidence that has been documented and written about that Britain did deploy nuclear weapons in the vicinity of the Gulf war and that together with statements of certain ambiguity by British sources and United States government officials that if Saddam Hussein tried to use weapons such as chemical or biological weapons that he should expect to feel the fullest retaliation.
Did you recognise that phraseology as being meaningful? — Yes.
What is the significance of that phraseology? — It was understood I think not only probably in Iraq but it was certainly understood by experts — and certainly I talked about it in Reuters — in implying that nuclear weapons might be used.
So, do I understand your evidence to be that you have experienced in the public domain a number of protestations from non-nuclear states that they feel threatened by British Nuclear weapons? — Yes.
And that is the case and has been the case for the last few years? — Yes.
Now, and narrowing that down just a little, if we may, when these protestations are being made to you is reference ever made to the legality or illegality of British nuclear weapons? — Yes, in two ways; one is illegality in relation to the Non-Proliferation treaty which other countries themselves have become parties to, and the second way is in relation to the ICJ ruling on the threat or use of nuclear weapons.
Now, amongst the diplomatic community if I can put it that way just what significance has the ICJ ruling? — It was viewed as giving authority to the legal interpretation to an number of international treaty commitments and obligations, and because the International Court of Justice was requested to look at the issue by the United Nations, many of — most of the countries within the United Nations system regard the advice as being essentially binding.
Now, before coming to a particular day this year I want to ask you some more questions, please, about the lady sitting at the table here, Ms Zelter. Have you met her before? — Yes I have.
Has she asked for your professional opinion in the past? — Yes she has.
I don’t mean in a court. I mean just out of court? — Yes.
And why would she be asking for your professional opinion? — She was writing a letter to Prime Minister Tony Blair and she wanted to know exactly what were the positions that Britain had taken and what were the legal obligations Britain had undertaken and I think the attitude of other countries to whether or not Britain had fulfilled those legal obligations.
Was she at all interested in understanding the current position of the British government from time to time on this subject? — Yes. Periodically she would ring me up and we would talk about where things were and I gave her various publications, analyses, in addition.
Can you remember the names of some of these publications? — One is a report I did for the Simpson Centre called “British perspectives on the future of nuclear weapons”. The Simpson Centre is one of the most prestigious think tanks in Washington very close to the Democrats and the Clinton administration and also the ongoing reports I do on the Non-Proliferation treaty and the comprehensive Test ban treaty and also in Disarmament Diplomacy, a journal we have published analysis from a number of experts, naval experts and military experts under the head of the Centre for Defence Studies at King’s College University, London on British nuclear policy and issues, and she would ask me about those and I would make copies or send her the documents.
Please tell me if in your professional opinion you think from your conversations with her she is able — she will forgive me for asking — to understand these documents? — Absolutely.
What is your professional opinion about her level or grasp of the subjects? — Very high. You can judge the grasp from the questions she asks and the questions she asks are very pertinent questions which get often to the core of the issue.
Was she in any sort of correspondence of touch with you in, say, May or early June of this year? — I actually cannot remember.
I tied you down to a time. Have you had such dealings with her this year? — Yes.
Did you know for what purpose or purposes she wanted this information? — No.
That is fine? — No, other than the letters to Tony Blair which I specifically mentioned.
Think, please. Are you qualified to speak authoritatively about the kind of support systems, technical, political or other support systems, which the British Trident programme requires? And I’m not asking you to try to tell me how any technicalities might work? — No, I would not have expertise in highly sophisticated workings but I have a general understanding of what is entailed.
You do. We know about the Defence Evaluation Research Agency and we have heard about a floating laboratory called Maytime which sits in Loch Goil. Are you broadly familiar with its part in the overall structure? — Broadly, yes.
What is its part in the overall structure? — It is a very essential component in the support infrastructure, logistical support for Trident.
I’m sorry, but that was my fault. I missed the end of your answer? — It is part of the logistical support for Trident.
What do you mean by logistical support? Well it is able to monitor and it is part of, the nuclear submarine systems and parts of why they are so important to the military are that they are supposed to be able to remain in stealth, secret prior to being used so that they can be fired supposedly from international waters at no risk to the crew and without detection until they reach their targets, and Maytime is partly involved in monitoring to what extent are they successful in (inaudible) and so on.
Maytime is responsible for monitoring the stealth of Trident? Yes.
Would that be correct as you understand it? Yes, although I am not a specialist on the hardware.
No, I understand that. Now, I want to tie two things together if I may. We have heard about a place called the National Ignition Centre in America? — The National Ignition Facility.
And I understand that it belongs to America with input from Britain and France. You accord with that? It belongs to the United States and there has been an on-board collaboration of scientists and recently I understand that Britain has enlisted in that, yes.
Where would you get your information about the National Ignition Facility? — Mostly reading the documentation available through various scientific journals and laboratories and I’m invited sometimes to the (inaudible) National Laboratory which holds arms control conferences and NIF is attached to the Lawrence Livermore National Laboratory whose scientists come to the same kinds of symposium and they bring information with them.
There is nothing secret about that information? — There probably are some aspects which are secret but most of it is out in the open.
In the public domain? — Yes.
I’m interested about the wider group, the perception of the wider group that we spoke of as to why, in the face of the treaties you have told us about and paragraph F of the ICJ opinion this facility exists at all? — The wider community perception is that — and amongst government representatives — is that it exists and it will simulate the nuclear test explosions which have been banned after the comprehensive Test ban treaty.
So we have a situation where Britain has signed a comprehensive Test ban treaty and to be fair it has stuck to it? — Yes.
But, you may not be qualified to answer this, but would you be prepared to say as far as you know that the National Ignition Facility is a sort of simulator testing rather than real testing? — Well it is actually a real testing. It is just testing the very, very minute quantities of plutonium. So, therefore, the tests can be conducted under laboratory conditions and will create explosions, but they are not directly prohibited in the comprehensive Test ban treaty. However, in the wake of perception, it is that the only reason for doing that testing is to be able to test, design, develop and potentially modernise to make new nuclear weapons.
How does that make the wider diplomatic community feel? — Some of them tried, including India, very hard to get those activities banned under treaty, but they had to back off because they realised….
How does it make them feel? — It makes them feel angry. They feel that they worked very hard to get a treaty only to find that due to technological advances that weapons states are using if you like a loophole to be able to carry on testing and modernising their nuclear weapons.
De you have any experience of anyone actually protesting to you about the threat? — Yes, South Africa, Pakistan, India — Actually, a group called the G 21 which actually has now 30, but a wider group for example the Conference on Disarmament, half of the members of the Conference on Disarmament had specifically put in working papers raising concerns, probably not mentioning NIF by name but mentioning inertial confinement fusion which is what the National Ignition Facility exists to do.
On your understanding of the way in which the global diplomatic community works, can you tell me what effect a Member of Parliament who was not the Prime Minister might have on that global diplomatic community? — An individual Member of Parliament would have virtually no influence. My institute actually organises parliamentary briefings where we invite members of Parliament from all parties to discuss some of these issues, but I would have to say hoof on an individual basis then they can do little. I even had lunch just two weeks ago with one of the foreign ministers who basically said that he would like to do a lot more but his hands were tied.
Would you like to say which one? — Yes, actually, I think.
Who was it? — Peter Hain.
I would like to bring you if I may to 8th June 1999 which is a significant date in this case. Where were you on 8th June, 1999? — I was at a seminar in Yvonne which is next to Geneva organised by the Monterey Institute who have a programme for promoting non-proliferation which is part of the centre at the University of Southampton and it was a seminar on basically rescuing, strengthening of Non-Proliferation.
Please tell me if any of the high-level diplomatic community which we have mentioned were protesting to you about the threat or use of British nuclear weapons on 8th June, 1999? — It was a smallish seminar, attended by (inaudible) us to Geneva for Britain France China, by the US State Department heading for Non-Proliferation and their head of the Department for Arms control Foreign Ministry, Russia.
Were any of them protesting? — I’m just trying to think exactly who was there. There was a general air of crisis at that meeting that the non-proliferation machine was falling apart.
A general air of crisis? — There were accusations and counter defences from a number of people who, representatives there which included South Africa, Canada, Australia, Germany, Japan — the Chilean ambassador would have been present — it was just after the meeting of the parties to the Non-Proliferation treaty. There were a lot of accusations from them towards the nuclear weapons states that they had a cavalier attitude towards their obligations to negotiate disarmament.
I see for the purposes of the notes you are pointing to paragraph F of section 105 of the ICJ opinion? — Yes, that they were undermining Non-Proliferation at a very dangerous time internationally, particularly with the India/Pakistan tests of the previous year and in basically coming close to declaring an nuclear doctrine at home. There was a terrible deterioration of issues between the United States and China and between the United States and Russia chiefly over the bombing of Yugoslavia.
Is this on 8th June? — This was all part of this crisis and there was a deterioration in relations and counter-accusations and anxiety that for example…,.
Can I stop you there? Can I take it that the conference was less than productive? — It was productive in the sense that a small seminar like that is actually about everybody taking the gloves off and speaking very openly with closed doors which is why I have to be a bit careful about how much of it I can state here, but I can talk in general terms without quoting anyone.
It is all right. I don’t want you to do that? — And basically essentially there was a lot of anxiety that if the governments particularly of the nuclear weapons states did nothing about the progress of nuclear disarmament, did not get a grip, then the whole non-proliferation machine would start to fall apart.
In your experience have you ever known an air of crisis like that? — Yes.
When was that? — A similar air of crisis in 1995 just before and after the big conference on the Non-Proliferation treaty when France resumed nuclear testing and China tested there was an air of crisis then I would say, but this was an accumulation and an number of other issues were raised there — for example at this time as well India and Pakistan were going to war again over Kashmir and the previous time they had gone to war — now they had nuclear capabilities and there was a fear about that and a fear that the nuclear weapons states had called on India and Pakistan not to weaponise their capability, not to actually make weapons, although they had the capability, and other countries were turning to the nuclear weapons states and particularly Britain on that occasion and saying “you should set the example by taking your weapons off alert”.
I see. Let me stop you there. Since the issue of the ICJ opinion just what kind of example has the United Kingdom has set if any on nuclear disarmament? — Well, I mean as I said earlier they on invitation did declare a limitation on the numbers of warheads.
But did not negotiate? — No, they did not negotiate.
CROSSEXAMINED BY MS ZELTER: I may have covered some aspects of this already in your reply. Dealing with (inaudible) has Britain carried out (inaudible) under article 6 of that (inaudible)? — No they have not.
Was it in the public domain on June 8th that plans were enough that to research future nuclear weapons systems? — There were serious anxieties about research plans going on under the auspices of stockpiles of (inaudible) which were about retaining nuclear weapons for the foreseeable future and even modernising nuclear weapons. That was being proposed in the Nineties as a matter of concern.
Did it include ideas about nuclear weapons in space? — Yes, some countries — China Russia Sri Lanka — actually most of the non-nuclear countries and South Africa again. South Africa comes up a lot because they have come out as one of the countries that was a nuclear weapons country that actually understands what you’d do if you want to make nuclear weapons. So that is why they are now in a leadership position. Countries like that have repeatedly raised concerns about the re-colonisation of the weapons states and asked for discussions in the Conference on Disarmament to address that concern which really as I say the United States has refused to allow to take place.
Are there in fact concerns that these plans might actually eventually breach the out of space treaty? — Very big concerns about that, yes.
Would you consider the mere act of deploying Trident as an ever-present danger (inaudible) so? — Yes, because of the nature and to this I would actually like to use the United States’s own language in discussing why submarine-launched nuclear weapons, what the advantages and disadvantages — and this goes to this question of ever-present danger. Trident is a weapon which can penetrate heavily defended areas without risking the crew. It can be launched from international waters and commensurately the weapon can be on target in minimal time. They are maximum stealth and surprise which can be maintained prior to launch which is why the research is so important. The system provides flexible targeting because it carries a multi–warhead installation and disadvantage is that the missile is not recordable in flight. You cannot change your mind once it is flying, fired, and also this is from the doctrine of a joint (inaudible) which was released under the Freedom of information Act. It is a United States publication and related to there is also the doctrine of joint nuclear operations for the same force but this one is dated December 1995, and this one refers to “it is important during peacetime to set up a strategy for warfare that is functional immediately”. Now, my reading of that is that at all times and at any time the weapons can be used. Britain’s refusal to take weapons off alert was to continue to enable Trident to be used at any time and therefore I think you would have to conclude that it is an ever-present danger.
Would that therefore mean that the active deployment of British Trident missiles on June 8th of this year could be perceived as a threat not only to the international community but (inaudible)? — Trident, yes. It would be perceived as a threat.
Would the equipping and maintenance of research that helped to keep Trident submarines whilst on patrol and trackable and invisible to the enemy’s equipment be seen in the international community (inaudible) as part of the complex Trident nuclear deterrent system? — Since the United States document makes it quite clear or that stealth related to Trident is an essential component in its ability to wage war the international community looks at a document such as this and comes to the same conclusion, and we have to rely on the United States documents because you can get hold of more of them due to their freedom of information Act than we can get hold of for instance directly of the British Trident, but we know that British Trident is assigned to Nato except in situations of supreme national interest, and that it is the Supreme Allied Commander for Europe who is always an American who controls the targeting of Tridents. The targeting relies on US intelligence and satellite information, and that targeting is integrated with the US targeting strategies. That is why I would rely on the US doctrine to get more insight into the doctrine underlying the targeting for British Tridents.
Could the disabling of such a laboratory be seen by the international community you were with as part of their disarmament of the complex nuclear deterrent system? — Yes, I think they would see it as that.
CROSS-EXAMINED BY THE PROCURATOR FISCAL: — you said from 1988 to 1992 you were an international co-ordinator. Of whom or what were you an international co-ordinator? — I was international co-ordinator for Greenpeace International of their nuclear test ban campaign.
Would it be fair to say that Greenpeace are an organisation which among other things takes a strongly anti-nuclear stance? — Yes, that would be fair to say.
Both in relation not only to nuclear weapons but to nuclear power and nuclear power stations? — Greenpeace as an organisation does, yes.
Can you tell us a bit more about the institute of which you are an executive director? All you have told us so far is that it is a small research think tank started in 1996? — That was when it was formally registered.
Who started it — yourself? — It was myself and one of the doctors at the Bradford School of (inaudible).
And approximately how many members or participants does it have at this time? — We now have four staff and an number of consultants.
What is the general purpose or thrust of your research? — It is research into multilateral arms control covering nuclear, chemical, biological. We have some small arms — and then we did a lot on the landmines issue and our purpose is to research into negotiations and to give information both to participants in Governments in negotiations and to non-governmental organisations, universities, institutes to enable them to have the level of information and understanding of the technical and political complexities of negotiations to be able to focus their lobbying or information or whatever, and so we have a target audience in most of the key countries of the world and diplomatic communities and foreign ministries and universities and the non governmental committees.
Does the organisation have any aim with regard to nuclear disarmament? — Yes, our aim there is to provide information to increase the level of democratic participation in decision-making on Disarmament, arms control amongst the international community.
Well, is it as objective was that or are there any aims about either participating in or bringing about nuclear disarmament? — Well, I think our objective is that nuclear weapons pose a very grave threat to survival and if the people of the world had the knowledge that we have about what they do, how they work and how they are targeted, and the problems that arise in negotiations, that they would work in different ways more effectively to bring about nuclear disarmament.
So, to summarise that, is the long and short and medium-term aim of your organisation to bring about nuclear disarmament? — That is my personal objective but the aim of the organisation is to research the position and disseminate the information as widely as possible so that people can use it in a variety of different ways in order to make countries accountable for the policies and positions they have.
Did I understand you to say that it was a personal aim and presumably personal to yourself, to eliminate nuclear weapons? — Yes, it is.
And can you tell me — you describe yourself as being executive director of this institute. Does that mean that you are the gaffer, the boss? — Yes it does mean I am the boss.
The publication of which you are managing editor which is Disarmament Diplomacy, you again describe yourself as managing editor. Are you in effect the boss? — Do you mean do we have an editor? We do have but I am a managing editor.
Does that mean that you have the final say in what goes down if you are the managing editor? — We also have a board of directors which includes the former British ambassador to the Geneva disarmament conference and professors and doctors who come from the Department of War Studies and so on. So, there is genuine accountability there.
Well, being the managing editor do you then have considerable clout — would you put it that way? — as to what this publication says and includes? — I do, but what actually carries the clout of the publication is the readership because it is read by senior members in all foreign ministries, all the key ministries and in the State Department and on the strength of our work I was invited to brief the National Security adviser of the White House and I was invited to the Kremlin to talk tothe foreign ministry, and I am frequently invited including to brief foreign ministry officials about Non-Proliferation issues here in Britain and I would not be given that access if the publication and the kinds of thing I write were not taken seriously. I also publish in other places of course. I mention some of them of course. I have published in Le Monde Diplomatique in an number of books devoted to looking at international security issues and in the United Nations publications.
Now, the publication is entitled “Disarmament Diplomacy”. Would it be fair to say that besides wanting to inform people that perhaps the ultimate aim of the publication is to influence people particularly these very important people who read it, to influence them towards nuclear disarmament? — The purpose of the publication is to inform and to create debate. So, we always have a section for opinion and editorial in which we invite specialists from a wide range of governments or institutes and also that world is heavily dominated by ministers from the United States, Russia China, but we create a debate so that we frequently have articles that we do not agree with that for example argue the case against disarming, and we did an analysis on the Strategic Defence Review and we invited naval specialists and professors who were closely involved with the Strategic Defence Review from the Institute of Strategic Studies in London who took part in that analysis and gave their own analysis. So, the purpose of it is for debate, to get the ideas and issues out because we believe that people can read themselves what information is out there and then they can decide for themselves. If the information is hidden as before we started up this journal this information was not getting out effectively and no one was monitoring — or nobody outside governments was monitoring the treaty negotiations or those positions.
To lead to the question, are you saying that it is no part of the aim of your publication to influence people either in favour of nuclear disarmament or against possessing nuclear weapons? Are you taking an entirely neutral stance? — No, we don’t take an entirely neutral stance. We quite openly are in favour of disarmament, arms control and collective international security which is why there was a quote from the Washington Post used on our front page last week deliberately castigating the United States Senate using the playground of partisan politics and avoiding measures together with allies for a collective defence capability and security.
So, to some eyes, it is not a neutral publication with regard to nuclear weapons? — No it is not a neutral publication with regard to any weaponry. It generally believed that the fewer weapons there are in the world, the safer and the more secure we would all be, but — and this is why we are taken seriously — we represent the Government’s positions fairly. We do not distort the information for the purposes of our message. We create a debate and we report very fairly what is actually going on and then we try to provide opportunities — I write on things and I invite others to write for the Journal to come up with some ideas and issues on how the world is going to move closer towards arms control and disarmament and away from the kind of free-for-all.
You told us that the United Kingdom government voted against endorsing accepting paragraph 105 F of the 1996 opinion of the ICJ? — They voted against in 1996 and they abstained in 1997 and 1998.
I’m asking you about the evidence that you gave the that they voted against it which was the first occasion? — There was a change of government between that did it.
I’m assuming that. Please do not try to jump the questions. You said that there were 26 other countries voted against that. Can you tell us who any of these were? — There were some former Soviet countries in that group and some of the Nato countries in that group plus Britain — sorry, plus France, Russia, China and actually I would have to look right back at the data to see who else was in that group, but there were some Nato but not all and a number of Nato countries voted for that paragraph and a number of former Soviet and a couple of French former colonies whom the French always get to vote on their side on every issue.
Now you told us that India, Pakistan and Israel are not members of the Non-Proliferation treaty? — That is correct.
What significance does that have? Does that mean that they don’t bother? — No, the significance of those three countries is they have developed nuclear weapon abilities. India until last year worked as hard as it possibly could within the Conference on Disarmament to try to get nuclear disarmament to be negotiated.
You see you added that within the last year, but India has nuclear weapons. Presumably they did not conceive of these and build them and make them operational within a year? — No they did not.
So, they were doing the same sort of thing you are accusing the United Kingdom of doing? — Yes and No. India was developing nuclear weapons but saying essentially “if we are going to have a world where some countries have nuclear weapons then we want to be one of the countries that has them for our security. We have a large population etc”. They were also saying that they would prefer that no countries would have nuclear weapons, and that was the consistent position they had, and they could have done nuclear testing a long time ago. The point at which they ended up doing nuclear tests was when in their view they had given up hope that the non-proliferation machinery really meant a weakening of reliance on nuclear weapons by nuclear weapons states. However, India continues to state that it would get rid of its nuclear capabilities providing Britain and the others would get rid of theirs.
But you could say that the same for Britain, couldn’t you? We are prepared to get rid of weapons if the French 30 miles across the Channel were and the Russians and Chinese and the Israelis, the Pakistanis and the Indians and the United States all got rid of theirs? — Actually this Government’s position is that “we will retain Trident or a similar system for our security” but Britain would need to rely on Trident or similar forms for the foreseeable future. Now, when Britain is in a position of keeping its nuclear weapons in 1968 it was within the context of the countries which it might have felt threatened by, like Germany, and Japan and now up to 182 countries had signed along the dotted line to say “we are not going to get a nuclear weapons or even try to get nuclear weapons. We are not going to make the materials for weapons purposes, plutonium and highly enriched uranium. We forswear it. We think that we can be secured without nuclear weapons” and it was in that context that Britain continued for many years to build up the nuclear arsenal and only very, very recently has it started breaking those down.
But the point is accepting your arguments if Britain gave up its nuclear weapons we still have the French. We would still have all these other countries — yes or no? — You could say the same argument to South Africa. The South Africans gave up their nuclear weapons.
Yes, but given the world as it is if Britain gave up its nuclear weapons you still would have a number of countries one of whom is very close to us which has nuclear weapons — yes or no? — We would begin to create the possibility for others. We are one of the smallest countries with the least direct security threat from nuclear weapons and we have to set an example.
SHERIFF GIMBLETT: — you must not speak together. The interpreter cannot deal with that. I understand, but you must speak slowly.
THE WITNESS: — I understand. So, if Britain were to give up and did renounce its nuclear weapons — if Britain were even to declare that it would take Trident off alert and not seek to replace Trident, this would be an enormous step towards declaring that it would not rely on nuclear weapons for the foreseeable future. It would make an enormous boost to the non-proliferation machinery because it would mean that at least one of the nuclear weapons states would fulfil its treaty obligations and that would help to strengthen the treaty.
CROSS-EXAMINATION CONTINUED BY THE PROCURATOR FISCAL: — Have you in mind India? — India is not a member of — one reason why it was not was because it said the treaty was unfair because it divided the world into haves and have-nots.
Are you saying that India would give up its nuclear weapons if Britain did? — I think that it would become, that if the Indian government tried to retain nuclear weapons if Britain gave up, it would lose the popularity that the current Indian government has actually got when it exploded tests at last year because it was seen in exploding those tests as proving that India was now of the same status as the others.
You have told us that Pakistan has nuclear weapons. Are you telling us that the Indians would eschew their weapons just because Britain did whether Pakistan get theirs? — It is the other way around, because Pakistan did nuclear testing after India again because there was enormous pressure domestically and they had to prove that they were as good as India. There was a regional rivalry there. What we are seeing is a bit like when you have a tangled knot. If you take one thread and begin to pull it out the tangle begins, the other parts of the tangle also begin to come clear.
Does it not depend what thread you pull? — Yes it does, but that is why a thread such as Britain who have fewer direct security threats from nuclear weapons would be in a position to take the step where at the moment a country like Russia which is in such deep trouble from all kinds of areas would not been able to be the first to take that step, because Britain basically would be at no risk from a step like that in security terms. In security terms in Britain were to take that step it would be of very high benefit in political terms for Britain to take it because Britain carries a lot of prestige internationally.
That may or not may not be true but Pakistan and India have been in dispute for years, haven’t they? — Yes.
They have been at war and if not at war or have been in various states. That we have heard from another witness in this case that as a result of the coup in Pakistan and India put its nuclear weaponry on alert. Is that understanding correct?.
MR MAYER: — don’t answer that. I’m not certain that that is exactly what that particular witness said, my lady.
CROSS-EXAMINATION CONTINUED BY THE PROCURATOR FISCAL: — Well, I will put it another way. Do you know so far as India’s nuclear capability is concerned from the people you have talked to that when the coup happened in Pakistan…,? — We do not know how much of India’s capability is recognised. It does not have missile delivery weapons yet. My understanding was that the country was put on alert. I would not have — I would not be prepared to say that the nuclear force was put on alert in India. I do not know.
If we look at paragraph 105 F of the 1996 opinion, does that impose any timetable for pursuing….
MR MAYER: — don’t answer that. My learned friend the PROCURATOR FISCAL seeks to take from the witness an interpretation of a very high level legal document. I have purposely kept away from concepts such as eiusdem generis and so on. The witness has not stated any expertise to interpret such a finding.
THE PROCURATOR FISCAL: — I’m not asking the witness to interpret anything. I’m asking the witness to find out what is says and tell me whether there is a time limit included in the wording.
THE WITNESS: — there is a clear obligation not only to pursue in good faith but to bring to a conclusion. In the course of the Non-Proliferation treaty meetings.
Where does it say that in the wording here? — This obligation to pursue in good faith and to bring to a conclusion negotiations leading to an disarmament in all its aspects under strict and effective international control.
I’m not asking you to interpret that but from the wording of that, is there any reference whatsoever to a timetable? — I am not…,.
Yes or no; in terms of the actual wording I’m not asking you what has been objected to, an interpretation, but I am only asking you whether in terms of the wording in black and white and plain English there is any timetable? — There is no specific reference to a timetable but there is a specific reference made to “bring to a conclusion” and in my the area of expertise this question of good faith has…
Well it has been objected to that you should try to interpret? — No, I don’t have any legal expertise at all, but the phrase “in good faith” has been discussed.
It does not say, does it, that this has to be done in one year, two years, five years, 10 years or 25 years, does it — yes or no? — There have been discussions…
Does it, yes or no? — No, this text doesn’t no.
In its wording here it is open-ended, is it not? — No, this is not open-ended. “Bring to a conclusion” is not open-ended.
But it doesn’t say when they have to bring it to a conclusion or within how long, does it? — This ruling happened in 1996 which was 28 years after the Non-Proliferation treaty and relied heavily on the Non-Proliferation treaty. That is my area of expertise but where the law comes in, this is not. There were a number of discussions in for example 1995 which said that…,.
That is fair enough. That is a judgment based on 1996, is it not? —… Where a number of ambassadors and legations which are also parties to a Non-Proliferation treaty specifically argue that to pursue something in good faith it could not be construed as meaning to leave it for 30 years. So it was in that context that the International Court of Justice opinion has been understood by the diplomatic community to have attached this “and bring to a conclusion” which is that they want more to happen more quickly than was done under the previous years of the treaty.
Well that may well be the intention according to you what this is dated July 1986, is it not? — Yes.
And it does not say in its terms that this is to be completed or not be concluded within any specific time, does it? — No. it does not.
Now, you said earlier that the UK government had not entered into negotiations for two reasons one of which you see was the UK Government’s fault and you then referred to the Strategic Defence Review. What is the second reason, the one which was not the fault of the UK government? — That was the one I later came to refer to which was that there had been attempts to get started on negotiating a plan on reduction of fissile materials, plutonium and highly enriched uranium for missile purposes, and that was blocked for a variety of reasons, some spurious and some not so spurious by other countries, some which wanted to this treaty not only to stop production from now, but to reduce what Britain and others had already produced, ie the stockpiles of plutonium and highly enriched uranium, and Britain and the United States and so on did not want their stockpiles to be counted and they did want to negotiate what they called a cut-off treaty, not to produce any more so I would say that Britain was certainly willing to negotiate and back to get the treaty narrowed in form which was not to include the British stockpiles that had been produced in the 1950s up to the present of which we have rather a lot.
Now, later in your evidence you referred to 182 countries making a pledge in relation to nuclear weapons? — Yes.
Which countries were not involved in that pledge? — Britain was not. The treaty has 187 members now, so of those now 182…,.
That is the Non-Proliferation treaty? — Yes, so of those 182 have pledged not to acquire or seek to acquire nuclear weapon materials or devices or explosives or weapons, and five of those countries including Britain couldn’t make that pledge because they already had nuclear weapons but made a pledge to get rid of their nuclear weapons, and then four countries altogether now in the international community which is India, Pakistan, Israel and Cuba, never joined the treaty. Cuba has no capabilities and so their reason for not joining the treaty was a political thing because they said it was an unjust treaty, not because they wanted to make uranium etc. India Israel and Pakistan did not join the treaty and have in fact made nuclear weapons.
So, 187 signed the treaty? — Yes.
So, 182 made a pledge. Just to go back my original question can you tell me which are the five countries which were signatories to the treaty which then did not make this pledge? — Britain, France, United States, China and Russia did not make a pledge that they would not acquire, because they already had nuclear weapons. They signed the treaty as having made a different pledge and that was that they would negotiate in good faith the suspension of the arms race and resume negotiations in good faith on nuclear disarmament.
When you said that Israel, Pakistan, India and Cuba had not signed the treaty, they are not in this? — They are not in that treaty.
What about Iraq, Iran, Taiwan, South and North Korea? — They are all members of that treaty. However, in 1994 North Korea tried to withdraw from that treaty but under the treaty the then Agency, the International Atomic Energy Agency, detected that there was a discrepancy in what North Korea said it was doing and the actual amounts, and they suspected that North Korea might be trying to divert some plutonium or highly enriched uranium in order to make a bomb. So, North Korea had to accept verification because of the treaty rules. The verification found a discrepancy and they went back to North Korea and at that time there was a brief attempt by North Korea to pull out of the treaty. This is why people like me think treaties are important, because without the treaty North Korea could have developed nuclear weapons with impunity, with nobody watching and nobody detecting. Iraq was a different case. Iraq was also a member of the treaty and violated its treaty obligations. It cheated on the treaty, and it tried to enrich uranium in highly secret facilities under a huge mountain but again when this was detected it was precisely because you could then accuse Iraq of having violated a solemn treaty obligation that the international community was able to impose very rigorous sanctions on Iraq. Without a treaty Iraq would not have needed to build a bunker under a mountain. But it could have just gone ahead with all the equipment and made nuclear weapons. That is why the Non-Proliferation treaty is so crucial and vital for international security.
Despite the treaty, Iraq was able to go ahead and do this? — But only by violating it. Despite this treaty, Britain is able to go ahead and violate its commitments. The point is that through the treaty you are able to at least try to address the violations. It would have been much more difficult for the international community to address the Israeli nuclear facility because you cannot send inspections to Israel. You are not allowed to send inspections to India’s nuclear facilities because they did not sign the treaty. The treaty obliges countries like Iraq and North Korea to accept the inspections, and it is in that context — precisely that context of concern over loss of credibility under the treaty as a result of nuclear weapons states not fulfilling their obligations — that has left a number of the non-nuclear states saying that this undermining of the treaty is what is giving a kind of open invitation if you have terrorists in or out of government, to try to acquire weapons of mass destruction. You are on the one hand saying they are essential for our own security and on the other hand we are saying that we don’t need to fulfil the obligations under the treaty, that we can pick and choose when we do it, but we don’t want Iraq or North Korea to pick and choose when they do it. We should be setting an example.
Of course, the present government will be in power for another two years, is that correct, and a lot of your criticisms are related to the previous government which was in power for 18 years.
MR MAYER: — don’t answer that. I trust my friend is not now embarking on a very extraneous line of blaming this witness for the conduct of a previous government. This is an expert lady who is not answerable for the actions of the previous government.
THE PROCURATOR FISCAL: — I’m not attempting to blame this witness for anything my lady.
CROSS-EXAMINATION CONTINUED BY THE PROCURATOR FISCAL :- This government had been in power for 18 years, since 1979? — Yes.
And would it be fair to say that much of the criticism that you have aimed at the British position is the position adopted during those 18 years? — Well in this court I have been asked to look at the position after 1996, after the ICJ, and so most of my comments relate to current policy.
Now, you were asked by my friend about what if anything since the ICJ opinion the current government have done to comply with paragraph F of paragraph 105 of the 1996 opinion, and I think just to short-term matters you listed three things it had done, correct? — Yes.
Now, in the world of international diplomacy particularly when you are dealing with something as complicated as nuclear arms, do you think it can happen overnight? — The danger of, as was recently shown by a Norwegian rocket launch that despite Norway having informed the Russians that they were going to conduct a launch…,.
No, I think you are maybe misunderstanding my question? — The point I wanted to make was that the danger is when talking about weapons on a hair-trigger alert you don’t have overnight sometimes. Decisions have to be made in 15 minutes whether or not you are going to launch nuclear weapons. Now, they misidentified a Norwegian weather satellite launch in January of 1995 which is exactly a case where because the Russians misidentified it as coming their way, and they scrambled with the possibility of having to launch their own nuclear forces, and it was only because there some wiser head in the Kremlin said “we have got good relations with the United States. Why would they be firing at us?” that they actually did not scramble their nuclear forces and of course it was then cleared up that it had just been an unarmed satellite launch and they had been misinformed.However, imagine if that kind of mistake had happened and of had been made in June of this year when I have just described to this deterioration of relations between the US and Russia and between the US and China, when they did not trust each other, when the Chinese embassy in Belgrade had been bombed by mistake — but nevertheless the Chinese did not think it was by mistake. Imagine if you had that kind of mistake being made then that the Russians might actually have thought that the US was attacking for real.
But there have been no deteriorations on many occasions during the past 55 years between various nuclear powers, haven’t there; yes or no? — Yes, we have had some very close calls.
And since 1945 there has not been a nuclear weapon detonated in anger other than by testing — correct? — Correct, but there have been some accidents.
I think the point you were trying to make was because of the nature of nuclear weapons, there is a limited time between a weapon being launched and the time to make a response. That is not something which is simply related to last June. That is something which has been going on for years and years and years, hasn’t it? — We have come very, very close on several occasions due to miscalculations which could have resulted in nuclear conflagration.
If you answer the next question yes or no, we have looked at the possibility of nuclear accidents for many years? — We have had a number of very nasty nuclear accidents.
And of course, if Britain got rid of its nuclear weapons that is no guarantee that someone else might not have a nuclear accident, is it? — There is no guarantee but it makes one less country able to have a nuclear accident.
But if you are going to give up nuclear weapons it is not something which can happen overnight. It is not like someone who has a weapon in the street who walks into the police Office, hands it over to a police officer who sticks it into a bin and maybe within the next few days it gets melted down? — But you have to make a commitment to do it and the Strategic Defence Review said that you are going to rely on Trident for the foreseeable future. Collaboration with the United States and France on things like the Inertia Confinement fusion at the NIF for potential modernisation purposes — these are things that you expect to continue to have these weapons for as long as you possibly can. Now, if they began to convert Aldermaston in Berkshire and all the facilities to be able to dismantle the weapons and verified dismantlement and put these highly dangerous toxic and radioactive materials under lock and key in storage as safe as possible given that these things are dangerous for hundreds of thousands of years — if they began to take those steps and not use Aldermaston to continue to refurbish Trident and to continue research project or on modernisation, then you would believe that they had made a commitment and that the international community would absolutely be prepared to recognise the time it takes to do these things as safely as possible.
But to go back to the original question, you cannot do it as quickly as the example I gave you, can you? — You can make a statement that you will cease to rely on nuclear weapons for security. You can make that in five minutes. You then have to have in place the technical and political procedures to do that in the safest possible way. The problem that the non-nuclear weapons states members of the treaty have with countries like Britain is that they keep asking for that fundamental commitment, a demonstration of good faith and intention to give up nuclear weapons. Nobody think you can get rid of them overnight, but you can take them off alert. You can state that you are ceasing to rely on them. You can take your warheads from the missiles. You can stop sending Trident out on patrol. All of these decisions could be taken over 24 hours.
I think the answer to my question is that you could not eliminate nuclear weapons overnight because apart from anything else you have to consider what happens to them thereafter and how you store them safely — yes or no? — Absolutely, and I think I answered that question.