DEFENCE OF ANGIE ZELTER
AT GREENOCK SHERIFF COURT
TRIAL BEGAN ON 27th SEPTEMBER 1999
‘Angela Christine Zelter (DOB 5.6.51), Bodil Ulla Roder(DOB 24/8/54) and Ellen Moxley (DOB 12.3.35), all prisoners in HM Prison Cornton Vale, Stirling
You are indicted at the instance of The Right Honourable THE LORD HARDIE, Her Majesty’s Advocate, and the charges against you are that
(1) on 8 June 1999 on board the vessel ‘Maytime’ then moored in the waters of Loch Goil, near Lochgoilhead, Argyll, you Angela Christina Zelter, you Bodil Ulla Roder and you Ellen Moxley did wilfully and maliciously damage said vessel and did score two windows on board said vessel with a glass cutter or other similar object and did attempt to drill a hole in one of said windows;;
(2) on date and at place above libelled you Angela Christina Zelter, you Bodil Ulla Roder and you Ellen Moxley did attempt to steal two inflatable liferafts from said vessel and did remove said liferafts from their mountings on said vessel and deploy said liferafts in the waters of Loch Goil aforesaid;
(3) on date and at place above libelled you Angela Christina Zelter, you Bodil Ulla Roder and you Ellen Moxley did maliciously and wilfully damage equipment, fixtures and fittings on board said vessel ‘Maytime’ and in particular did cut a hole in a metal wire fence in the laboratory of said vessel, did smash the contents of electronic equipment cabinet and rip out electrical cables in said cabinet, did cut off the main control switch for the winch on said vessel, did damage a padlock on the door to the control room of said vessel by attempting to saw through same with a hacksaw and thereafter covering said padlock in glue or a similar substance rendering said padlock inoperative, did pour glue or a similar substance onto the wires and controls of a crane on the upper deck of said vessel, on the controls of the winch aforesaid and onto the cleats securing the hatch on said vessel, did place a chain around the crane on the upper deck of said vessel thereby preventing said crane from operating, and did smash a computer monitor on said vessel, did damage a wall clock in the laboratory of said vessel and did damage a cabinet containing a power supply to an adjacent platform, by forcing said cabinet open and damaging same;
(4) on date and at place above libelled you Angela Christina Zelter, you Bodil Ulla Roder and you Ellen Moxley did maliciously and wilfully damage a quantity of computer equipment, electrical and office equipment, acoustic equipment and amplifier, recording equipment, fax machines, telephone, tools, documents, records, electronic components, a briefcase, radio equipment, range finder, books and a case and contents, and did deposit said items in the waters of Loch Goil, whereby said items became waterlogged, useless and inoperable;
date and place above libelled you Angela Christina Zelter, you Bodil Ulla Roder and you Ellen Moxley did steal said quantity of computer equipment, electrical and office equipment, acoustic equipment and amplifier, recording equipment, fax machines, telephone, tools, documents, records, electronic components, a briefcase, radio equipment, range finder, books and a case and contents, and did remove said items from said vessel and did deposit said items in the waters of Loch Goil and did thus steal same;
BY AUTHORITY OF HER MAJESTY’S ADVOCATE.
I will be putting to this court several legal defences and although there may be a little overlap of the arguments involved I am doing it so that I make it as easy as possible for this court to be able, on good legal grounds, to acquit me and find me not guilty of all charges. On a personal level I would have preferred just to have stood before you silently, with love and peace in my heart, and let my actions speak for themselves – because on one level the whole thing is very simple. Threatening to kill millions of people, and perhaps all life on the planet, by the use of nuclear weapons is wrong. However, although you, the jury, would be able to acquit us on these grounds alone, because you do not have to explain your decisions, the Sheriff needs a detailed legal argument.
The defences that I will be using will be:-
A COMMON LAW DEFENCE OF COERCION OR NECESSITY that basically states that having tried all other means to prevent a very great wrong I had no other choice open to me but to join a campaign committed to practical and safe disarmament and to do my part in disarming a part of the Trident system by disarming Maytime;
A STATUTORY DEFENCE that authorises me to act if I have a ‘reasonable excuse’ and where I shall be arguing that trying to help prevent mass murder is such a reasonable excuse;
AN INTERNATIONAL LAW DEFENCE that authorises me to act in order to prevent the commission of crimes recognised under international law;
A MORAL DEFENCE that is mine as a right as a human being and essentially says that whatever the state of the law it would be right and proper to try to prevent the mass murder of innocent people.
I need to make it quite clear from the outset that I will not be disputing any of the obvious facts of the case. I will admit that I disarmed the DERA laboratory with Ulla and Ellen. This dispute is not over whether we did, or did not, throw into Loch Goil, valuable research equipment but whether these items would have been used for the unlawful and unethical purposes of aiding and abetting grave breaches of the Geneva Conventions Act, an act brought directly into UK law, as well as breaching other international humanitarian laws which apply in Scotland as they do in all countries of the world, and whether we therefore had a lawful justification for our acts of disarmament.
The issue for you the Jury, as you are the ones that have the ultimate responsibility and power in this case, is to decide whether we did what was right and proper. I would like to remind you that in the past jurors won the right to make their own minds up and, if necessary, to go against the judge’s instructions if they felt this was right and proper. So, at the end of this trial, it will be for you to decide whether it was right for us, as global citizens, to join with others to try to disarm and try to prevent the Trident nuclear weapon system from operating effectively. You are being asked to decide whether we, ordinary women, were right to try to prevent our government from deploying and threatening to use, weapons of mass destruction, that could never be used lawfully. Whether it is right to prevent the mass killing of millions of human beings and the possible destruction of all life on this planet. The issue is actually of immense importance and if you decide eventually, after hearing all our evidence, to acquit us – this will have a big impact on the Judiciary and upon the Government and may be one of the factors leading to total global nuclear disarmament.
In order to go beyond the superficialities of our actions on June 8th on Maytime and in order for us to have a fair hearing and put a full case for you to hear and judge, I will give evidence on the illegality and criminality of Trident. I do not need to prove that Trident is illegal but I do need to establish a reasonable doubt about the lawfulness of Trident. And I must stress here that regardless of the controversy about whether all nuclear weapons are illegal at all times, the issue here in this Court today is whether the British Trident system, as currently deployed, is illegal and criminal and thus whether I had a right to disarm part of it.
I therefore ask that you understand, along with the International Court of Justice, that, ‘The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’. [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice].
I would now like to go into the witness box and give my evidence.
ANGIE ZELTER’S EVIDENCE
FROM THE WITNESS BOX
1. Personal Background.
48 years old. Widow with two adult children. A potter and gardener. Have lived in rural Norfolk, East Anglia, England for 25 years.
After completing my degree at Reading University when I was 21 I married and went to Africa. Three years working with my husband in Cameroon, West Africa, for the British Government, taught me directly how poverty in the third world was caused by transnational corporations backed up by the financial institutions and military power of the powerful nations of the world, which worked to provide profits that ended up in the UK and the Western world. I was kindly told that if I really wanted to help the people and forests of Cameroon then I should go home and put my own country in order. I returned to England determined to take responsibility for what my country was doing in my name and to withdraw my support from policies and actions that were destroying the livelihoods and environment in other parts of the planet.
I have been working in a voluntary capacity, ever since, in the peace and environment movements, mainly for nuclear disarmament but also for the protection of old-growth forests and the rights of indigenous peoples. I have taken part in many different campaigns over the years and worked with organisations such as Friends of the Earth, Greenpeace, Campaign Against Arms Trade and the Campaign for Nuclear Disarmament. Although working mostly in England, I have also supported campaigns which try to prevent crimes from taking place in other countries like Malaysia, Canada, Poland and Finland as well as here in Scotland, and I have also been imprisoned in some of these countries. My experience has been that often a strong and purposeful international and public nonviolent direct action campaign is needed before change can occur. This is an important point because many people may question how our disarmament of just one research laboratory connected to the Trident system can actually prevent nuclear crime. The answer is that when it is part of a sustained publicly supported nonviolent and accountable campaign it can do just that. Our action is part of such a sustained and publicly supported campaign – called Trident Ploughshares 2000.
2. Work for Nuclear Disarmament.
Now I want to give you some background to my work in the peace movement because I need to present evidence to you to show that I tried every other reasonable method to prevent nuclear catastrophe over the last 25 years before disarming Maytime. I did not disarm the nuclear research laboratory on a whim or in anger. It was not the act of a vandal or terrorist. I had tried everything else and in the circumstances there was no other reasonable legal alternative.
Although aware of the dangers of nuclear weapons for many years, it was not until the early eighties that I first realised there was a world-wide movement for nuclear disarmament which had begun in 1945 after the terrible US nuclear devastation of Hiroshima and Nagasaki. In fact, the very first resolution of the newly formed United Nations, unanimously called for ‘the elimination of nuclear weapons and all other weapons of mass destruction’. In 1978, at the height of the Cold War, millions of signatures were being collected for presentation at the United Nations Special Session on Nuclear Disarmament. I read the background documents very carefully, signed the petition and then joined a local group to help get more signatures, thus beginning my active involvement in the peace movement.
I helped form a local CND group and organised numerous discussions, debates and public meetings in my own area which was surrounded by US nuclear air bases. In the course of doing this I was able to speak face to face with some of the direct victims of the nuclear weapons cycle, – those who have suffered and continue to suffer from the effects of the uranium mining, production, testing and deployment of nuclear weapons.
I heard directly from some of the survivors of the Hiroshima and Nagasaki bombings, saw records and photos of the devastation and heard of their suffering first-hand.
I would like to submit to the jury this short pictorial account of the bombings as it includes images that I have been carrying in my own mind ever since first meeting some of the survivors. I would also like to remind you of the photos that we left in the DERA laboratory after we had disarmed it.
* HAND IN – ‘DAYS TO REMEMBER – AN ACCOUNT OF THE BOMBINGS OF HIROSHIMA AND NAGASAKI’ – [H.I]
PHOTOS OF HIROSHIMA LEFT IN DERA LAB from the booklet ‘HIBAKUSHA’ – [H.2]
The reason they were placed in the laboratory was to show the technicians what we were trying to prevent from ever happening again. It is so easy for all of us in our every-day lives, to forget the bigger picture, just to think of our own lives and jobs, and to forget the implications and consequences for the wider world, to forget to question ourselves, is this a moral, justifiable and responsible piece of work I am doing here. Should I do it? We wanted to bring the ultimate consequences of the work on making Trident invisible out into the open.
I also had the sad honour of introducing Darlene Keju-Johnson from the Marshall Islands and Lijon Eknilang from Rongelap to the Mayor of Norwich at a public debate. I say sad because unfortunately Darlene has now died from the many cancers from which she suffered as a result of the testing of nuclear weapons. Their stories were heart-rending and I have never been able to forget them.
Lijon told us:-
‘I was 8 years old at the time of the Bravo test on Bikini in 1954 …. it was very early in the morning that I woke up with a bright light in my eyes …. soon after we heard a big loud noise, just like a big thunder and the earth started to move …. a little later …. we saw a big cloud moving to our island. It covered the sky. Then it began to snow in Rongelap …. For many hours poison from the bomb kept falling on our islands. Late in the afternoon I became very sick …. Big burns began spreading all over our legs, arms and feet and they hurt very much. Many of us lost our hair. We remained on Rongelap for two and a half days after the fall-out came. Then Americans came to evacuate my people to the American base on Kwajalein Atoll …. We did not take our belongings or animals …. After that we moved to Majuro and we stayed there for three years …. In June 1957, when we did return, we saw changes on our island. Some of our food crops …. had completely disappeared …. some stopped bearing fruit …. What we ate gave us blisters on our lips and in our mouths and we suffered terrible stomach problems and nausea …. In the early sixties we began to experience all of the illnesses we are having now. Many people suffer from thyroid tumours, still births, eye problems, liver and stomach cancers and leukaemia …. The most common birth defects on Rongelap and other atolls in the Marshall Islands have been ‘jellyfish’ babies. These babies are born with no bones in their bodies and with transparent skin. We can see their brains and their hearts beating. There are no legs, no arms, no head, no nothing. Some of these things we carry for 8 months, 9 months. The babies usually live for a day or two before they stop breathing. Many women die from abnormal pregnancies and those who survive give birth to what looks like strands of purple grapes which we quickly hide away and bury’.
In 1985 the people of Rongelap evacuated themselves with the help of Greenpeace from their contaminated atoll to another island and have lived in exile ever since. They have never been compensated for the damage done to their island and livelihoods and the genetic damage carried in their genes could never be adequately compensated for in any case.
As Darlene explained, the Marshall Islanders had been told:-
‘We are testing these bombs for the good of mankind, and to end all wars’.
The navy official did not tell them that the Bikinians would never see their home again. Bikini is off limits for 30,000 years.
I also met members of the Shoshone Nation who have been dispossessed of their land in the Nevada in order for the USA and the UK to test their weapons. The Comprehensive Test Ban Treaty has at last been signed as a result of the work by the peace movement which has included thousands of acts of nonviolent civil intervention over the last fifty years. But the dispossession of the indigenous peoples and the contamination of their lands remain.
I have not time to tell you of the other many stories of the sufferings, evictions, dispossessions and pollution imposed on innocent indigenous peoples by the nuclear weapon states in their greed for uranium, their need to bury nuclear waste, build their weapons and intelligence bases and in their current deployment of nuclear weapons. But I would like to hand in as evidence this little book that gives a glimpse into the suffering of ordinary people like you and me in the Pacific. I acted on June 8th with them in mind.
* HAND IN – ‘PACIFIC WOMEN SPEAK OUT’ – [H.3]
As I met these people and organised local public debates and discussions I realised how ignorant I was and so I did a part-time Masters Degree in Peace Studies at Bradford University. This time of study allowed me insight into many of the problems associated with nuclear weapons, much of which I cannot go into here. I was introduced to the problems associated with the whole of the nuclear weapons cycle of production and was later to read a book by Dr. Rosalie Bertell called ‘No Immediate Danger: Prognosis for a Radioactive Earth’. I read this and it profoundly affected me. I would like to read a very small extract from it:-
‘In the dim light of a hospital room, seven years old Jimmy was remembering the day on which he was told he had leukaemia. He remembered his mother’s tears, his father’s bewildered anger. The alien feeling of the hospital’s environment. Then his mind replayed the nausea and diarrhoea caused by radiation therapy and chemotherapy, his hair falling out and kids laughing at him … Jimmy died gently, utterly exhausted having lost so much blood. His tissue had broken down completely, and he was bleeding from every body opening. His bed looked just like a battlefield. … Jimmy’s story is one of hundreds of thousands of similar stories related to the nuclear age. Radiation released from each step in the nuclear weapons production cycle, plus that released in the testing of nuclear weapons, has spread invisibly and insidiously around the planet. This radiation causes congenital defects, mental retardation, immune destruction, cancer, stillbirths and other health problems. In human terms, the cost has been astronomical. Rosalie Bertell has estimated that ‘The global victims of the radiation pollution related to nuclear weapons production, testing, use and waste conservatively number 13 million.’
At Bradford I was also introduced to the massive dangers associated with the reliance upon nuclear deterrence policies and the potential for accidental nuclear war.
I updated this information only just last year and would like to hand this paper on nuclear accidents in as evidence of my knowledge and state of mind at the time of my disarmament action on June 8th. It is very short but fully referenced and will show that I had at the time of my action, and still have today, a reasonable belief founded on actual factual information that we are at risk from such accidents at all time. This is necessary for me to be able to prove that I am in imminent danger. This is a factual rather than a legal matter.
* HAND IN – ‘ACCIDENTS’ – [H.4]
The fact that things go wrong is common experience. We know that nuclear weapons are immensely powerful and destructive and that human beings are prone to irrationality, carelessness and sometimes insanity. The conjunction of these two facts are enough to counter any claims that nuclear weapons are subject to infallible safeguards against accidental or miscalculated launch. The possibility of an inadvertent war due to an unpredicted sequence of events is a deadly threat to the world, and the deployment of nuclear weapons is totally reckless.
Only about 20% of the accidents that happen ever come into the public domain, as the military everywhere try to keep their accidents covered up. It took 37 years for the Lakenheath crash of 1961 to get out and 14 years to reveal that HMS Sheffield, sunk in the Falklands war, had nuclear weapons on board.
Let me give just a few examples.
In May 1968 the USS Scorpion collided with a barge in Naples Harbour and was lost at sea on 27th May. The 98 people on board were killed and the nuclear reactor and nuclear weapons were ‘lost’ and are gradually releasing their radioactivity into the oceans.
In November 1979, the displays at 4 US Command Centres all showed a large number of Soviet missiles in a full-scale attack. Emergency retaliation preparations were made with attack planes. Luckily the sensors on the satellites were working that day and with early warning radar reporting no missiles it was recognised as a false alarm. Apparently an exercise tape had been accidentally run on the computer system. A Senator in the Command Centre at the time reported that there was absolute panic.
On 4th October of 1986 the USSR Yankee class submarine sunk with all its crew and its nuclear missiles off the eastern US coast after a fire. This was the fifth sub to have been ‘lost’ at sea – the US having ‘lost’ two and the Soviets three.
In many other accidents, radioactive material has also been lost. At Palomares in Spain where a B-52 crashed in 1966 and at Thule, Greenland where another B-52 crashed, plutonium was widely dispersed as a consequence of conventional explosives. Huge amounts of contaminated soil and ice had to be excavated and removed and yet the legacy still remains. In 1986, of around 800 Danish people who worked to clear the contaminated ice at Thule, 500 were ill and more than 90 have cancer.
At a US base very close to where I live, on 27th July 1956, at Lakenheath in East Anglia, fuel from a B-47 bomber caught fire and engulfed the nuclear weapon store. 4 crewmen were killed and officials described the outcome as a ‘miracle’ because ‘the sheared and exposed bomb detonators somehow failed to explode’. A senior US officer was quoted as saying ‘It is possible that a part of Eastern England would have become a desert’. That is my home.
In 1958 military nuclear waste overheated causing a chemical explosion and spewing radioactive dust for hundreds of miles in the Urals of the USSR. An unknown number of people died of radiation sickness and a huge area has been permanently evacuated.
On 9th August 1965 53 people died when a Titan II ICBM exploded in a missile silo.
Cancer clusters have been found in many towns near nuclear bases like Greenham, Lakenheath, and Wittering and can be linked to various accidents. In 1978 high levels of Cobalt-60 were discovered in Holy Loch. In November of 1980 a Nimrod crashed at RAF Kinloss with nuclear depth charges on board. On 20th June 1985 two lorries carrying polaris warheads collided at Helensburgh. There are known leaks of radiation from working submarines (for instance from a Polaris submarine on patrol in June 1994) and there are the known accidents, leaks and routine venting of radioactive materials that occurs in the nuclear reactors that provide the materials for the subs, for instance the tritium discharges at Chapelcross. Accidents happen all the time and the effect on the eco-system as all the hundreds of ‘lost’ nuclear weapons and the sunken submarines slowly release their radioactivity into the oceans is already damaging our global environment and the genetic viability of all living species. Also, we must not forget that the problems associated with the safe and permanent disposal of old nuclear submarines and of the associated radioactive materials have still not been solved – there are 11 old UK nuclear subs sitting in Rosyth and Devonport waiting for a solution and meanwhile posing radiation leakage problems.
Then there are quite a few incidents of bombs being dropped whilst being hoisted into position. To take just one, in 1981 at the Holy Loch, a Poseidon missile containing 10 warheads was being winched into the submarine USS Holland when the winch ran free and the missile fell 17 feet and smashed into the side of the USS Los Angeles. Detonation of the warhead trigger system, which very luckily did not occur this time, could have dispersed plutonium dust as far as the center of Glasgow.
These accidents are impossible to predict but can happen at any time. We are all in danger all the time. Up to 1993 there were 12 known accidents involving the nuclear convoy including crashes, overturns and breakdowns. For instance on 31st October 1997 a Harrier crash at RAF Wittering (a base near to my home) took place only a couple of hundred yards from a fully loaded Trident convoy parked in the regular base compound.
And only last year, in July, there was a power failure on the Trident HMS Vanguard carrying 96 nuclear warheads and 135 crew members. It went into an uncontrolled dive and a major human and nuclear catastrophe was avoided by only minutes.
One of the latest examples, of a near miss of nuclear war by accident, that has occurred since the ending of the Cold War, at a time when many people thought the dangers were over, occurred on 25th January 1995. The Russian early warning radars detected an unexpected missile launch near Spitzbergen – only 5 minutes from Moscow. The early warning, control and command systems were switched to combat mode and the Russian President was given his nuclear command suitcase. Only just in time it was determined that the missile’s impact point would be outside the Russian borders. In fact the missile was Norwegian and had been launched to investigate the Northern Lights. The notification to 35 different countries had apparently reached the Russian Defence Ministry but they had not notified the on-duty personnel of the early warning system.
The likelihood of such an accident could increase markedly in the new millennium, especially if nuclear weapons are kept on alert status, because of possible failures or incorrect information transfers in military computers resulting from the Year 2000 ‘bug’.
Knowledge of accidents that have happened in the past and a very rational fear of catastrophe is not only mine but is shared with many people including a top US General, called General Lee Butler, who was Commander in Chief of the US Strategic Command from 1992-94, in charge of all strategic US nuclear forces. In December 1996 he explained why he had made the long and arduous journey from staunch advocate of nuclear deterrence to public proponent of nuclear abolition. He warned:-
‘Options are being lost as urgent questions are unasked, or unanswered; as outmoded routines perpetuate Cold War patterns and thinking; and as a new generation of nuclear actors and aspirants lurch backward toward a chilling world where the principal antagonists could find no better solution to their entangled security fears than Mutual Assured Destruction’.
He was speaking at the launch of a statement by over 60 Admirals and Generals from 17 different countries calling for the elimination of nuclear weapons. A couple of years later, in February 1998 he launched a similar statement by 117 civilian leaders and stated:-
‘The theory of nuclear deterrence …. is costly, wrongheaded and dangerous’.
This is a nuclear weapons commander saying that nuclear deterrence is dangerous, not me.
Then again on 11th March this year General Lee Butler made another speech in Ottawa:-
‘Let me …. give you some sense of what it means to be the Commander of Strategic Nuclear Forces, the land and sea-based missiles and aircraft that would deliver nuclear warheads over great distances. First, I had the responsibility for the day-to-day operation, discipline, training, of tens of thousands of crew members, the systems that they operated and the warheads those systems were designed to deliver. Some ten thousand strategic nuclear warheads. I came to appreciate in a way that I had never thought, even when I commanded individual units like B-52 bombers, the enormity of the day-to-day risks that comes from multiple manipulations, maintenance and operational movement of those weapons. I read deeply into the history of the incidents and the accidents of the nuclear age as they had been recorded in the United States. I am only beginning to understand the history in the former Soviet Union, and it is more chilling than anything you can imagine. Much of that is not publicly known, although it is now publicly available.
Missiles that blew up in their silos and ejected their nuclear warheads outside of the confines of the silo. B52 aircraft that collided with tankers and scattered nuclear weapons across the coast and into the offshore seas of Spain. A B52 bomber with nuclear weapons aboard that crashed in North Carolina, and on investigation it was discovered that on one of those weapons, 6 of the 7 safety devices that prevent a nuclear explosion had failed as a result of the crash. There are dozens of such incidents. Nuclear missile-laden submarines that experienced catastrophic accidents and now lie at the bottom of the ocean.’
I would like to hand in the text of the whole of General Lee Butler’s speech.
* HAND IN GENERAL LEE BUTLER’S 1999 CANADIAN SPEECH – [H.5]
In the context of all this information and knowledge, I therefore believe that it is reasonable for me, knowing the enormity of the risks involved, to believe that we are all in immediate danger and that we should take reasonable steps to protect ourselves by joining with others to try to disarm the nuclear weapons systems.
My progression to actual practical, safe, nonviolent and accountable disarmament action of the Trident system, however, did not begin until just 2 years ago. The previous years were spent in organising public debates, parliamentary petitions and lobbies, demonstrations and marches, vigils and letter writing. I continue to do all these things but decided that now was the time to begin practical disarmament because the nuclear weapon states are not prepared to do it themselves.
Before I go on to tell you exactly what happened on June 8th I need to tell you of some of the work I have done on exploring the legality of Trident because this is essential in explaining why I believe our action was lawful as well as morally right.
3. LEGAL CASE AGAINST TRIDENT.
I first discovered the war laws from meeting George Delf, the author of a book called ‘Humanizing Hell’, and found at last the connection between morality and law that I had unconsciously been searching for. Intuitively most of us respect the law in so far as and only in so far as it is based upon universally held moral precepts that protect the innocent from harm. The body of international law known as the war laws or international humanitarian law tries to do just this. Basically they protect innocent civilians and limit the amount of damage that can be done to the environment so that life can continue as normal when wars are over. On reading these laws it was quite obvious that nuclear weapons made a mockery of them.
I therefore helped to get together a comprehensive set of expert witness statements, many of which had been used at a Citizen’s War Crime Tribunal against nuclear weapons in London, and with them approached my local magistrates court in order to take out a private prosecution against the then Prime Minister, Maggie Thatcher, and her Ministers for conspiracy to commit grave breaches of the Geneva Conventions Act and the Genocide Act. Private prosecutions are reasonably common in England, unlike in Scotland, but I was denied access to this remedy in law. I was told different things by different magistrates, either that it would not be in the public interest to hold such a case or that I was a frivolous and vexatious litigant trying to bring politics into the courts, or that the Crown would take over the proceedings and drop them and so it was not worth proceeding with. I tried a direct approach to the Attorney General but was told that it was the job of the police to make enquiries about crimes. I went to the local Norfolk police and wrote to the Chief Constable but was told it was not in the public interest for them to do anything about official defence policies.
But these international laws exist, two of them had even been directly brought into UK law and yet no-one seemed interested in the fact that British nuclear weapons breached them. With others I organised a campaign of ‘information layings’ where we encouraged other people to approach their local courts hoping that somewhere some magistrate would have the independence and courage to confront the wrong-doing of the Government, but all met with the same brick walls. Around 50 different approaches were made over a number of years to magistrates courts around the country – all of them refused to allow us to take out a private prosecution.
Around the same time Pax Legalis was working along the same lines. Pax Legalis formed in 1984 and tried for more than ten years to have the substantive questions of law addressed by the courts. ‘Their understanding was that there was ongoing conspiracy to commit serious crime, and since to their knowledge the prosecuting authorities were not taking action it was their right and duty to take legal action’. After ten years when informations had been laid and refused, summons for arrest were refused, case stated’s were postponed or withdrawn, ‘It was Pax Legalis’ conclusions that the Judicial system was unwilling to hear the substantive case’. Pax Legalis have published a book about their attempts to get the Judiciary to act impartially, which contains a copy of all the legal documents. I thought that would be too thick a tome to hand-in as evidence but I would like to hand in this one page summary of their work along with a summary of the approaches that have been made by Scottish people to the Lord Advocate on similar lines. All have been met with the same official brick wall.
* HAND IN PAX LEGALIS AND OTHER APPROACHES TO THE COURTS – [H.6]
In the midst of these activities, I was invited by other concerned people, including one from Pax Legalis, to join with them to form a national charity called INLAP – the Institute for Law and Peace. We began to produce educational materials about international humanitarian laws and explored how we could persuade the authorities to uphold and respect these laws. This was around 12 years ago. As part of an INLAP delegation, I went to the first gathering of International Lawyers and NGOs in The Hague to join others to press for an approach to be made to the International Court of Justice to ask for an Advisory Opinion on the legality of nuclear weapons. It is a long story but this initiative, that started with an Open Letter by a Judge in New Zealand, developed into the World Court Project and after many problems, including a great deal of pressure from the powerful Nuclear Weapon States who tried to stop the process, the UN General Assembly finally asked for and received the Advisory Opinion.
This Advisory Opinion clarified the international laws relevant to nuclear weapons, and stated that nuclear weapons are generally illegal. It highlighted the two principles of international law that can never be broken even in an extreme case of self-defence. These two cardinal principles are firstly that,
‘States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets’
‘it is prohibited to cause unnecessary suffering to combatants. It is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering’.
No British Trident nuclear warhead of 100 kilotons can possibly conform to these requirements and are thus illegal.
Only recently, on August 20th, The Herald reported on the release of secret papers that admit that RAF Chiefs, in the 1960’s, calculated that British bombs would kill as many as 40 million people in the USSR in the event of a nuclear war. So soon after the holocaust and the Nazi’s ‘final solution’, so soon after the Nuremberg Tribunal, we find our own Government planning the mass destruction of another people. Did we really learn nothing from the Second World War? I find this truly terrifying. That ordinary people in ordinary offices can coolly rationalise away the horror of planning the death of millions of people. That my own Government was, and still is, so devoid of humanity and imagination, that it cannot work out how to defend our country in a humane and civilised manner, is deeply shameful. These released papers now provide proof that past nuclear war plans were criminal.
However, this is not all in the past. There is no doubt that somewhere in the recesses of Whitehall someone has calculated how many people would die today if the Trident missiles we now have were ever fired. It may be a highly classified document but we cannot wait another 30 years for these current documents to be made public. We can, however, work out ourselves how many people could die. The present deployment of 144 Trident warheads mean there is still a capability of killing around 30 million people, including 8 million children. Yes, eight million children.
It seems callous and unfeeling to even mention that such inhumanity would also be a criminal act. But I am in a Court of Law today, being charged with various crimes. It is of the utmost importance for me to be able to prove to you that my actions were lawful because they were necessary to try to prevent the horrendous criminal plans and acts of my government. The present deployment of Trident is quite clearly a conspiracy to commit a war crime and a crime against humanity. My act of disarmament, within this context of trying to prevent mass murder, was quite clearly justifiable and lawful.
Now, I will be going into all this in more detail when I present my legal defence to you but for now I would just like you to have a copy of the Advisory Opinion and also of ‘The Herald’ article.
* HAND IN – ICJ ADVISORY OPINION [H.7]
* HAND IN – THE HERALD – AUGUST 20th, 1999 [H.8]
I would like to read you one small quote from page 29 of Judge Weeramantry’s part of the ICJ, which I think says it all.
‘One wonders whether in the light of common sense, it can be doubted that to exterminate vast numbers of the enemy population, to poison their atmosphere, to induce in them cancers, keloids and leukemias, to cause congenital defects and mental retardation in large numbers of unborn children, to devastate their territory and render their food supply unfit for human consumption – whether such acts as these can conceivably be compatible with ‘elementary considerations of humanity’. Unless one can in all conscience answer such questions in the affirmative, the argument is at an end as to whether nuclear weapons violate humanitarian law, and therefore violate international law’.
After the publication of the Advisory Opinion, in response to letters from many concerned citizens, the Government made it quite clear that it would still not disarm its illegal nuclear weapons. I considered this irresponsible, undemocratic and shameful as well as deeply undermining of the international legal order. Basically the 8 nuclear weapon states (NWS) are holding the other 180 non-nuclear countries to ransom and are undermining the rule of law in the international community. They are abusing their power. This was one of the main reasons why I worked with others to start a project based upon directly upholding international law – the Trident Ploughshares 2000 campaign of People’s Disarmament.
4. TRIDENT PLOUGHSHARES 2000.
I would like to make sure that every member of the jury has a copy of the Tri-Denting It Handbook. It was left in the disarmed laboratory on Maytime along with our Joint Statement to help explain our purposes in disarming Maytime.
* HAND IN – TRI-DENTING IT HANDBOOK – [H.9]
I wrote this myself, with the help of material that the peace movement had put together over the years. I would like it to form the basis of my evidence because it shows very clearly my state of mind, reasoning and beliefs before, during, and after my action on June 8th and I think proves conclusively that my act of disarmament was a reasonable, peaceful, moral and lawful act for a responsible global citizen, who had tried other more conventional means of effecting change for many years.
If you look in Part 1 – the yellow section, on page 5 under AIMS you can see that I clearly wrote:-
‘Our acts of disarmament are intended to stop ongoing criminal activity under well recognised principles of international law.’
Part 4.3, on page 43, gives a clear overview of the British nuclear arsenal that consists of 4 Trident submarines, each of which carries 48 100 kiloton nuclear warheads, each of which can destroy a different target. This means, that at any particular moment, this one included, there are three operational submarines deploying 144 nuclear warheads any one of which could destroy a major city, like Glasgow or Edinburgh.
For an even better overview of Trident’s weapons of mass destruction I would like to hand in as evidence this booklet by John Ainslie of Scottish CND and which I had very much in mind when I disarmed Maytime.
* HAND IN ‘TRIDENT – BRITAIN’S WEAPONS OF MASS DESTRUCTION’ – JOHN AINSLIE – [H.10]
His description, for example, of the effects of a limited attack on 16 command bunkers in and around Moscow using Trident warheads from one Trident submarine, shows that there would be three million deaths. This would be completely unlawful and yet there is good evidence to show that targets like these are at this moment in the UK and NATO command and control computers.
If you go to Part 4.5 on page 47, you will see the section that outlines the effects of nuclear weapons in general. As you will see acknowledged in Section 7 of the Handbook, this section was taken almost word for word from Judge Weeramantry’s Dissenting Opinion, appended to the Advisory Opinion of the International Court of Justice. If this is read in conjunction with the next section Part 4.6 on page 52 that outlines the legal status of nuclear weapons it becomes quite clear why I think the British nuclear Trident system that is based in Scotland is illegal and criminal.
A quick look at Part 2.7, on page 27, will also outline our attempts at dialogue and negotiation with the Government. We organised this campaign totally openly and accountably in accordance with our beliefs that what we were advocating was well within the law – that in fact it was the Government breaking the law, not us.
On March 18th 1998, well before we began our disarmament actions in August 1998 we wrote to the P.M. with copies sent to the major Cabinet Ministers, Heads of the Armed Forces and the heads of the Scottish and English Judiciary. The letter outlined the need for immediate nuclear disarmament by the UK in compliance with international law and the Advisory Opinion of the International Court of Justice. The letter also outlined the aims and objectives of TP2000, enclosed a copy of the Tri-Denting It Handbook and a copy of the Video. I was subsequently phoned up at home by Commander Harbour of Faslane Base to ask if I would mind sending him a copy of the book and video directly. TP2000 received a cheque for twenty five pounds from him in payment!
I would like to show you parts of the 15 minute video now, just to prove how open, accountable and nonviolent, I and the TP2000 campaign, as a whole, is. I helped to produce the video in December 1997 and it is the very same video that was sent to Commander Harbour of Faslane Base and to the Prime Minister and that was left on Maytime by all three of us to explain the background to our action.
* SHOW TRI-DENTING IT VIDEO – [H.11]
We did not publicly launch TP2000 until May 2nd 1998. We hoped this might make it easier for the Government to talk quietly with us, and perhaps inform us that they were in the process of giving effect to their international obligations, as laid down in the Advisory Opinion of July 8th 1996, and that therefore we would not need to start our campaign. However, we did warn them in our first letter that if we found they were not seriously engaged in a process of disarming all weapons of mass destruction, that could never be used in accordance with international law, then we would launch TP2000.
We also enclosed a series of nine verifiable steps towards nuclear disarmament (see page 27 of the Handbook) and said that if no progress had been made towards implementing these then we would start our open disarmament actions in August at Faslane and that thereafter ‘secret but accountable’ actions would begin at other Trident related sites. And launch we did, on May 2nd, in Edinburgh, London, Gothenburg, Gent and Hiroshima.
We have continued informing the authorities at least every three months of our concerns, and asking pertinent questions which they refuse to answer. I have here a batch of letters that either I personally or TP2000 as a whole has sent to the government from 1996 to the present. I have of course written hundreds of letters over the years but thought these more recent ones the most relevant to this trial. They provide some of the evidence that will prove I tried all lawful means to protect myself and others from the threat of nuclear weapons before disarming Maytime with my friends here.
* HAND IN CORRESPONDENCE WITH OFFICIALS – [H.12]
These letters show a marked reluctance to answer important questions as to how Trident can be legal. I have here a copy for everyone of the most recent Open Letter sent on 23rd March of this year which summarises the questions to which we have still not been given satisfactory answers.
* HAND IN OPEN LETTER TO TONY BLAIR OF 23 MARCH 1999 – [H.13]
‘How can the threat to use a nuclear warhead of up to 100 kilotons be consistent with international law which specifies the necessity, even in self-defence, to be able to distinguish between military and civilian targets, which prohibits unnecessary suffering to combatants, prohibits widespread, long-term and severe damage to the environment and specifies the inviolability of neutral nations?’
‘One probable target is Polyarni, a town in Northern Russia, close to the border with Norway. It has a population of over 28,000 and it is close to several Russian Navy shipyards which are used to repair nuclear powered submarines. A Trident warhead exploding in the air above the shipyard would create a fireball 870 metres across. The town would be completely flattened. Around 90% of the population would be killed by a combination of extreme heat, collapsing buildings, and radiation. The death toll would probably include around 7000 children. The explosion would destroy schools, hospitals and churches. The few survivors would all be seriously injured. Even 4.5 km from the explosion, anyone in the open would suffer from third degree burns. There would be extensive blast damage and hundreds of casualties in the town of Severomorsk, 10 km away. All this is to say nothing of the extensive secondary radiation which would effect the inhabitants of Norway. On any interpretation of international law it is perplexing to see how this could be legal. Can you assure us that Polyarni, or any similar places are not on your target lists?’
‘If Trident is not illegal then will the Government please furnish us with even one detailed example of how, where and when a 100 kiloton Trident nuclear warhead could be used lawfully?’
Every three months TP2000 holds well-publicised opportunities for Open Disarmament by TP2000 Pledgers. The Government is given the names of all Pledgers – this is updated every three months. At present we have 143 Pledgers from 10 different countries.
You will find a copy of the Pledge to Prevent Nuclear Crime and the Nonviolence and Safety Pledge on pages 77 and 78 in the Handbook. But I should like to hand in as evidence my own Pledges that I signed on the 8th March 1998.
* HAND IN PLEDGES – [H.14]
I would also like to read them to you as they summarise very well the basis of all my and other TP2000 actions and clearly show that our actions were planned from the start to be safe, responsible acts of lawful crime prevention.
* READ PLEDGE TO PREVENT NUCLEAR CRIME
I would also like to draw to your attention a letter that I wrote with my affinity group in Norfolk on the 9th July 1998 – fully 11 months before the disarmament of Maytime. It was written to the Attorney General of England and copied to the Lord Advocate. It explains TP2000, gives the names and addresses of our group, explains why we have pledged to disarm Trident and invites them, as the senior law officers of Scotland and England, to take the view either that we are engaged in a conspiracy to break the law without justification or that the Government is in breach of international and humanitarian law. We stated that if they took the first view then it would be in the public interest to take legal proceedings against us, the signatories of the letter, perhaps in terms of a charge of conspiracy, or, if they took the latter view, it would be in the public interest to take legal proceedings against the Prime Minister and others responsible for the UK’s nuclear defence policy. We enclosed yet again copies of our Handbook, Video and signed Pledges. We received no reply.
* HAND IN WOODWOSES LETTER TO THE A.G., L.A., AND D.P.P. [H.15]
All this goes to show the lengths we have gone to be open and accountable and the ample opportunity we have given the Government and Judiciary to right these wrongs themselves. If our Government and it’s Institutions do not take responsibility, then we as global citizens cannot leave it at that. We have a right and duty to act ourselves, providing it is responsible, safe and nonviolent action.
In September 1998 I wrote an article about TP2000 that was published in Disarmament Diplomacy – a specialist publication that is read by most of the UN Diplomats working in the Conference for Disarmament. I felt that by openly publishing the arguments for People’s Disarmament and by explaining what was happening in the Scottish District Courts this would not only inform many other non-nuclear countries that there was active protest and resistance against the illegal nuclear deployments of the UK from within the UK itself but that such publication would also be yet another lawful form of pressure for disarmament.
* HAND IN DISARMING TRIDENT: LEGALITY, MORALITY AND PROTEST IN THE UK – [H.16]
A trial such as this gives the people, in the role of the Jury, a chance to set the record straight, and by finding us not guilty, to send a clear message to everyone to take responsibility for the wrongs around us and to urge the Government to finish the disarmament themselves.
I was heartened by the courage and strength of the Jury in Liverpool in 1996 who acquitted me and three of my friends who had disarmed a British Aerospace Hawk jet, by doing damage estimated at around one and a half million pounds. The Hawk jet was just about to be delivered to Indonesia where it would probably have been used to take part in more genocidal bombings of the East Timorese people. The jury agreed with us that it was not only morally wrong to aid and abet genocide by selling arms to a repressive and genocidal regime like Suharto’s Indonesia, but that it was also against international law. I hope that you will have the humanity to do the same for us.
5. THE DISARMAMENT OF MAYTIME.
Finally, I wish to say a little about the disarmament of Maytime.
We had all taken part in the blockades and minor disarmament actions at Faslane and Coulport during the first few of the three-monthly Trident Ploughshares disarmament camps where over 200 people had been arrested and were gradually being heard at the District Court in Helensburgh.
During the August 1998 camp, an international team of Pledgers, consisting of global citizens born in Finland, Holland and the USA, managed several times to swim within a few yards of Trident submarines in Faslane but did not manage to board. Three Swedish-born Pledgers got close to a Trident at Barrow and after some months in prison awaiting trial were finally tried for conspiracy to commit criminal damage. They got a hung jury and are now released awaiting a re-trial.
Two English-born Pledgers in February this year managed to swim into Barrow and board the Trident submarine Vengeance, actually getting right inside before disarming testing equipment, worth one hundred thousand pounds, on the conning tower. They probably delayed its departure from Barrow for several months. They are out on bail awaiting their trial in January 2000. To date, more than three hundred people have been arrested for TP2000 actions. All of these actions by Trident Ploughshares Pledgers are part of the overall attempt to effect safe and nonviolent People’s Disarmament.
We three – Ulla who is from Denmark, Ellen from Scotland and myself from England – first met as a group, 5 months before the action. We decided that our next disarmament action should be based in Scotland. After rejecting several other Trident related sites (which you can see a list of, in Section 3.3 on page 35 of the Handbook) we finally decided to concentrate on Maytime in Loch Goil. This was because the fourth Trident – ‘Vengeance’ (the one already delayed in Barrow by Rachel and Rosie) – would need to go to Loch Goil for its trials and we felt we may be able to prevent or at least delay this, thus helping to prevent one fourth of the UK nuclear arsenal from threatening anyone, at least for some time. We were also aware that the three actively deployed Trident subs need to use the Loch Goil DERA labs for check-ups and maintenance work.
I would like to read out the Joint Statement that we wrote and signed together on the 6th June, 1999.
* HAND IN JOINT STATEMENT OF ANGIE, ULLA AND ELLEN – [H.17]
* READ JOINT STATEMENT
On June 8th at 7 p.m., we launched a small inflatable boat from Lochgoilhead, drove it to Maytime and boarded the vessel. We found a window that could be unbolted from the outside and carefully unbolted it and gained access to the main room of Maytime – the laboratory. We immediately saw that the quickest, neatest and safest way to make sure that the equipment could not be used for illegal purposes, like helping test Trident submarines, would be to disconnect the equipment and just throw them into the loch. This we did. We took everything moveable, including computers, printers, keyboards, amplifiers, phones, faxes, discs, manuals, spare parts, whatever we could move. We worked carefully and safely. We then cut into the heavy metal cage in the corner of the laboratory where the control boxes and winch mechanism for the model submarine seemed to be situated and cut the wires in the boxes and hammered on each of the electric circuits – to make them unusable. We spread a syrup and sand mixture with furniture polish on to the winch mechanism. We hung three banners up on the outside of the barge to explain to the police and security, press and public what we were doing. We made sure that we left the laboratory very tidy and laid out on the tables our Joint Statement, Handbook, Video, newspaper cuttings and the pictures of the damage caused by the use of nuclear weapons on Hiroshima and Nagasaki.
After we had finished with this part of the vessel Maytime, we saw that there was a separate room outside on the way up the stairs to the top deck. It was the Control Room of Maytime. Having cleared out the laboratory and checked through other rooms, we could see that there were a further 2 computers and some other equipment in this locked Control Room that were connected with the overall operation of the vessel Maytime. We tried to enter the room. We could not get through the heavy padlocks on the door so we tried to cut through the glass. It was proving rather difficult to do this and taking quite a while, so we discussed what we should do.
We decided we would try and go for Newt that was also in the area and went to our boat that we had left tied up by Maytime. Unfortunately, by this time two hours had already elapsed and it was in a bad way and was only half inflated. We decided to untie it and hoped that it would land on a nearby shore where supporters might be able to pick it up later, so it could be mended and be used for other disarmament actions. We saw the liferafts on Maytime and decided to use them to continue with our nuclear crime prevention. We tried releasing them and inflating them. The first one seemed to land upside down and the second one did not inflate. We were feeling quite hungry and exhausted by this time, so we had a quick picnic on the top deck of Maytime to think what we should do. We enjoyed the beautiful sunset and wondered why the security had been so lax, when the authorities had been given a list of the Trident related sites that TP2000 were hoping to disarm and when the security guards were so close, on the land at the DERA facility. We then started work again and had just started to make some progress with the drill beginning to get through the window of the Control Room when the police boat arrived. We later learnt that it had been alerted by press interest in what we were doing.
We all stood by the side railings and greeted the policemen politely and told them who we were and asked them if they would like us to come down to the boat or whether we should stay where we were. They asked us to come aboard the police launch, which we did. We then explained that we had launched the life-rafts in an attempt to go on to disarm Newt but were not sure how they worked. Was it up the right way and where were the oars? One of the men told us the oars were in a flap in the side. We talked most of the way to the Coulport base about international law, TP2000 and the continuing acts of disarmament. The atmosphere was calm and courteous.
We had been taken on board the police boat at approximately 10.30 p.m. after having been on Maytime for well over three hours. We felt, that as three ordinary women, we had completed to the best of our ability our part of the disarmament of the criminal nuclear weapon system.
On Wednesday 9th June, we were brought before the Sheriff at Dunoon where I made a formal declaration. I have a report of the proceedings here which have been transcribed from the tape made on that date at the Court. I would like to hand this in as evidence of my attempt, yet again to have the illegality of Trident addressed impartially by the judiciary.
* HAND IN REPORT OF PROCEEDINGS AT DUNOON SHERIFF COURT ON JUNE 9th, 1999 – [H.18]
I would like to read a short extract from page 5 where I said to the Sheriff:-
‘I wish to report that a crime is being committed by the fact that Trident is being deployed and it’s against international law and that my act of disarmament was crime prevention, and I’m asking this court to seriously consider arresting the real criminals, the politicians and the people that are sending weapons of mass destruction around the world … there will be no dispute as to the facts in this case, it is purely on the issue of whether what we did was lawful or unlawful … that it really shouldn’t be up to ordinary citizens to try to make our Government obey international law and Scottish law’.
There was no response to this. Another brick wall. I was just asked if I would agree to the bail conditions. I was unable to accept the bail conditions because in all honesty I could not agree not to continue working for the disarmament of all weapons of mass destruction around the world – this would in the court’s opinion have meant we would have breached the bail condition number 2 which says we would not commit an offence whilst on bail. As the Court were pre-judging our acts as being unlawful we all decided that in all honesty we could not sign the bail conditions knowing that our interpretation of the law was not accepted by the court. We have therefore spent the last four months in Cornton Vale prison awaiting this trial and hoping that you will agree with us that our action was not criminal but was a responsible, moral and lawful action.
LIST OF DOCUMENTS HANDED IN
H.1 – Days to Remember – an account of the bombings of Hiroshima and Nagasaki.
H.2 – Hibakusha – photos from this that we left inside Maytime.
H.3 – Pacific Women Speak Out.
H.4 – Accidents – 1998 paper compiled by Angie Zelter.
H.5 – General Lee Butler’s 1999 Canadian Speech.
H.6 – Pax Legalis and Other Approaches to the Courts.
H.7 – ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List, No. 95, 8 July, 1996.
H.8 – The Herald, August 20th, 1999.
H.9 – Tridenting It Handbook – Angie Zelter, on behalf of TP2000.
H.10 – Trident – Britain’s Weapons of Mass Destruction – John Ainslie.
H.11 – Tridenting It Video, TP2000.
H.12 – Correspondence with Officials, TP2000.
H.13 – Open Letter to Blair of 23rd March 1999, TP2000.
H.14 – Pledge to Prevent Nuclear Crime and Nonviolence and Safety Pledge, TP2000.
H.15 – Woodwoses letter to the Attorney General, Woodwoses TP2000 Affinity Group.
H.16 – Disarming Trident: Legality, Morality and Protest in the UK, Angie Zelter.
H.17 – Joint Statement of Angie, Ulla and Ellen.
H.18 – Report of Proceedings at Dunoon Sheriff Court on 9th June 1999.
1. COMMON LAW DEFENCE OF COERCION OR NECESSITY
In Scots law the defence of necessity may be used where the accused has done something which is on the face of it unlawful but which is justified by the extreme circumstances of the situation. For instance, you are permitted to destroy property belonging to a person in order to save his life – by committing a crime you have avoided a greater evil. The concept that ‘one should not be punished when an act of breaking the law prevents more evil than it has caused’ is an essential and basic part of common law.
An important case is that of Moss v. Howdle [Ref.2 – Moss v Howdle (1997 SCCR 215)] where a driver exceeded the speed limits by driving too fast to the nearest service station because his passenger was suffering from severe pains. The defence of necessity was available to this particular defendant and therefore it can be open to me too. In this particular case the court found that the driver could have prudently followed an alternative course of action which would not have involved committing the offence (i.e. the driver could have pulled over to the side of the road rather than speeding). The court found that the driver had had a real choice and was not constrained to commit the offence. The Lord Justice-General said, ‘the defence cannot apply where the circumstances did not in fact constrain the accused to act in breach of the law’ [Ref.1 – Moss v Howdle (1997 SCCR 215)].
The minimum requirement of the defence of necessity is:-
1. that the accused acted in the face of immediate danger of death or great bodily harm;
2. that it makes no difference where the danger arises from, it can be from a natural disaster, an illness, from the deliberate threat of another or any other danger;
3. that there is no other reasonable legal alternative to disobeying the law.
The common law basis for these requirements is laid out extensively in Moss v. Howdle, to which I refer you.
To take these requirements one by one:-
I) I must show that I acted in the face of immediate danger of death or great bodily harm
Since the question of whether or not there is such a danger is a question of fact and not law, it is of no import to this question as to whether British nuclear weapons are legal or illegal in international law. Even if the use of nuclear weapons were to be perfectly legal, which I of course dispute, the viability of this defence is not affected. The ICJ Opinion is of use in this regard, not as a statement of law, but as an authoritative and comprehensive review of the effects of nuclear weapons upon human life, health and habitat and I recommend to the court the copy of Weeramantry’s Opinion appended to the ICJ Advisory Opinion [Ref.2 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice – Weeramantry’s Dissenting Opinion]. It includes a detailed review of the current dangers of nuclear weapons. These are based upon the testimony of many of the witnesses who gave oral testimony during the proceedings of the ICJ. He details the unprecedented magnitude of the destructive power of nuclear weapons which is uncontainable in both space and time with a potential to destroy the entire eco-system of the planet.
I would like to remind the court of the testimony that I gave from the witness box that showed that I was aware of these facts. I gave testimony to show that I knew that accidents are happening all the time, that radioactivity is being leaked and vented routinely and that the environment is becoming steadily contaminated with long lasting radioactive elements that are harming the whole planet but especially those indigenous peoples whose native lands have been poisoned by the mining of uranium and the testing of nuclear bombs. They certainly do not concur that the last 50 years of nuclear weapons have kept the peace. Their testimony is heartbreaking as they struggle to live with the genetic malformations caused by the criminal negligence of the nuclear powers. I acted to try to stop these immediate and ongoing routine contaminations from continuing.
I also presented to you evidence to show that at any moment an accidental launch of nuclear weapons could happen and thus I and others are in immediate danger from this. The fact that we have nuclear weapons ready to use and a nuclear deterrence policy means that other countries have theirs ready to use – which multiplies the risk. I am not alone, many people all over the world feel threatened and unsafe, they certainly do not feel protected by weapons of mass destruction. I also presented evidence to show that I have a justifiable fear that British nuclear weapons could be used purposefully and that millions of innocent civilians could be killed.
The question of imminence and how immediate a danger must be to satisfy the requirements of this defence is of course arguable. I would argue that in ordinary life we do not wait for precise notice of when a house with faulty wiring will go up in flames or when leaky gas mains will explode. Any prudent and responsible person acts immediately to circumvent the danger. If an event can be reasonably foreseen to happen at some unspecified time or other, even over a course of years, although it could of course come about immediately, then that danger is immediate. There will be neither time nor opportunity for reasonable and peaceful civilian intervention, like our own, to prevent the terrible crime of mass destruction, at the actual time that nuclear weapons are launched – apart from the fact that we are extremely unlikely to know when exactly our government launches their nuclear weapons. Now is the time to act. This prudent approach was taken by a High Court in Stuttgart, Germany, in 1995, when anti-nuclear activists were acquitted after the court accepted that they had acted against a nuclear weapons base because of the imminent danger not only to themselves but to others [Ref.4 – Cases Upholding Illegality of Nuclear Weapons – High Court, Stuttgart, Germany, 1995].
I therefore think I have shown that I acted in the face of immediate danger of death or great bodily harm.
II) I must show that it makes no difference where the danger arises from, it can be from a natural disaster, an illness, from the deliberate threat of another or any other danger.
Thus the dangers that arise from nuclear weapons and from our own government’s ‘defence’ policies are also a valid danger that can be included in this defence of necessity.
III) I must show that there is no other reasonable legal alternative to disobeying the law.
The Lord Justice-General stated in Moss v. Howdle, ‘The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some contention beyond the dictates of ‘necessity’ and ‘human instincts’. [Ref.2 – Moss v Howdle (1997 SCCR 215)].
I would also like to refer to Gordon on Criminal law where he discusses necessity,
‘If obedience to the Law were regarded as a supreme value, there would be no room for the Plea of Necessity at all, since it would not be possible for a breach of the law to be more valuable than one which did not involve such a breach ….. There seems to be no reason for regarding legal rules as categorical, or as being all of equal value – there is no more reason why some legal rules should not be regarded as more important than others, or why in some cases other considerations should not allow a legal rule to be broken. The law is not an embodiment of absolute wisdom but merely a means of social control, and it would be socially disadvantageous, for example, to prevent the preservation of a building by action involving the theft of a ladder and fire extinguisher.’ [Ref.3 – G.H.Gordon, Criminal Law of Scotland, 1978, Ch 13, p 419].
How much more disadvantageous is it to leave the Maytime testing laboratory operating and to enable it to keep Trident ready for mass destruction?
In this case, there was no reasonable alternative to trying to disarm the Trident system ourselves by actions such as ours on June 8th. Many people all over the world have tried every legal and conventional method they can think of over the last 50 years to persuade governments to disarm their nuclear weapons. As members of Trident Ploughshares 2000 we have gone to extraordinary lengths to get the government, courts, police and others to prevent nuclear crime, but to no avail.
To summarise my evidence from the witness box, you will remember that I wrote letters, lobbied, demonstrated, vigiled, marched, held public meetings, wrote briefings and articles, formally tried to take out private prosecutions, approached the police, courts and the Heads of the Judiciary. Even though recent polls show that 85% of Scots now want nuclear weapons to be disarmed, the government refuses to disarm. After joining with many others in the World Court project and getting an Advisory Opinion from the International Court of Justice in our favour that stated quite clearly the international laws that applied to nuclear weapons, even then the government refuses to respect this Opinion. Although 100 kiloton nuclear warheads could never be used in conformance with international law, Trident submarines continue to deploy them and the government have said they need to continue relying upon nuclear weapons for the foreseeable future. In view of all this there was no other effective way to get these horrific weapons disarmed than for ordinary people to start disarming the system themselves. When very great wrongs are done in the name of the people and the majority of the people do not want these crimes to be done in their name then they have to stop these crimes themselves. Someone has to take responsibility for the prevention of mass murder and Trident Ploughshares Pledgers are accepting that responsibility.
It may be of use for this court to know that other Judges, facing a similar dilemma of whether to convict or acquit peace protesters like us, under the necessity defence, have found the courage to acquit. There is an interesting Law Review Article which gives a number of examples of people disarming nuclear weapons systems and being acquitted under the necessity defence. For instance, in the 1995 case of People v. Jarka in Illinois, USA, Judge Alphonse E.Witt instructed the jury as follows:-
‘The use or threat of use of nuclear weapons is a war crime or an attempted war crime because such use would violate international law by causing unnecessary suffering, failing to distinguish between combatants and non-combatants and poisoning its targets by radiation’.
The case of People v. Lemnitzer in 1982 involved an attempt to save lives by preventing further nuclear weapons proliferation at the Lawrence Livermore National Laboratory in the USA and here also, the defendant was acquitted on the Principle of Necessity. And more recently, on June 8th this year, eight activists who peacefully blockaded traffic into a US Trident submarine base were found not-guilty when Judge James Riehl told the jury to consider in their deliberations the fact that international treaties supersede local, state and federal laws [Ref.4 – Cases Upholding Illegality of Nuclear Weapons – Nuclear War, Citizen Intervention and the necessity Defence, Aldridge and Stark, Santa Clara Law Review, Vol.26, Spring 1986, No.2; Judge James Riehl, June 10 1999, Ground Zero Center for Nonviolent Action, 16159 Clear Creek Rd NW, Poulsbo, WA, 98370].
I therefore ask the court to acquit me under common law, of all charges.
2. STATUTORY DEFENCE
I have been charged that I ‘did wilfully and maliciously cause damage’ to a whole variety of objects.
You will recall that I explained why we tried to get into the Control Room of Maytime by scoring two windows with a glass cutter and trying to get in by using a hand drill and why we threw the contents of the laboratory into the Loch. The fact that we did this damage is not in dispute. However, it is quite obvious from my testimony in the witness box that we did not do this maliciously. We did it purely to gain access to the Control Room in order to try to prevent Maytime from being used for illegal purposes – and we did it to prevent the equipment from being used for criminal purposes. In other words, we were trying to disarm a part of the criminal, nuclear weapons system, called Trident.
Moreover, it is again obvious from my testimony that we were not intending to steal the equipment from Maytime. We had no intention of getting any personal material benefit from the theft of equipment – if we had then we could easily have just taken the equipment on our boat and landed it and driven away with it. That was not our intention. Our intention was not to commit any crime at all but to prevent crime, perhaps the most horrific crime of all – the use of nuclear weapons and the possible destruction of all life on the planet. Our intention was to disarm part of the Trident system. We threw the equipment in the Loch because salt water was the fastest and safest way to disable and disarm this Trident related equipment. Nor was our aim to steal the liferafts, we were trying to use them to get to Newt, the other floating platform connected to Maytime, in order to continue our disarmament work. I believe that we had a lawful excuse for all that we did – what is called ‘reasonable excuse’.
To show that I had reasonable excuse I need to show the following elements:-
i) that preventing a crime is a reasonable excuse in Scots Law;
ii) that international law is relevant to Scots Law;
iii) that the threat and use of Trident nuclear weapons is a crime in international law;
iv) that I honestly believe that this crime was being committed and was imminent;
v) that I reasonably believed there was a practical link between my action and the prevention of crime;
vi) that my action was reasonable in the circumstances, that I had considered alternative courses of action, and that I could not do anything else effective to prevent the crime.
i) Preventing a crime is a reasonable excuse in Scots Law.
In Scots Law the belief that one is preventing or halting a greater crime is a reasonable excuse when charged with offences against property.
I would like to bring to the Court’s attention the case of MacDougall v. Yuk-Sun Ho [Ref.5 – 1985 S.C.C.R. 199] where the Lord Justice General allowed ‘reasonable excuse’ to apply to damaging property to prevent the escape of a man thought (incorrectly as it happens) to be a criminal. The accused had damaged a car windscreen in an attempt to prevent the escape of occupants believed by him to be responsible for damaging his shop window. The central element in Ho’s acquittal was his sincere belief that he was preventing the perpetrators of an unlawful action from escaping regardless of whether or not his actual target was correct. The rationale underlying his acquittal is put quite succinctly in the last few lines of the final paragraph of the Case Stated where it says,
‘allowing for … his desire to stop the perpetrators of the offence from getting away … it has not been shown that …. there was no reasonable excuse in all the circumstances.’
Now, I am arguing in my case, here, that the whole complex nuclear Trident system which enables the deployment of 100 kiloton nuclear warheads is an unlawful threat in itself, now at this moment while we speak. But even if this were not the case and I was only saying that I wanted to prevent the future crime of an actual use of Trident nuclear warheads I could also cite this case in my defence as it would be logical and consistent with this judgement to also allow measures to prevent such a crime from taking place in the future.
ii) International law is relevant to Scots Law.
For my defence of ‘reasonable excuse’ it is necessary to determine whether the activities, that my intended act of disarmament, was aimed at preventing or halting, would be recognised as criminal actions in international law and whether international law can be taken into account in Scottish Courts.
The position of the Scottish Courts is that customary international law is part of Scots law, although in case of a conflict with a statute or precedent, that statute or precedent must prevail. It is to be noted that for vandalism, there is no legislative guidance on the meaning of ‘reasonable excuse’, therefore it is quite valid to look to customary international law to determine the meaning of the phrase.
In the famous Mortensen v. Peters case [Ref.6 – Mortensen v. Peters,1906 14 S.L.T. 227], Lord Kyllachy stated that
‘there is always a certain presumption against the Legislature of a country asserting or assuming the existence of territorial jurisdiction going clearly beyond limits established by the common consent of nations – that is to say by International Law’.
It was indicated that when it cannot be said that the Scottish statute contains ‘express words’ or there is ‘plain implication’, international law is of use in determining the meaning of the legislation (or common law). In this way, international law can have a highly significant role in Scottish courts.
For the courts to apply a rule of customary international law, it must have
‘attained the position of general acceptance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decision’ [Ref.7 – The Christina (1938) A.C. 485 at 497, per Lord Macmillan – House of Lords].
Professor Ian Brownlie Q.C. says that
‘customary international rules are to be considered part of the law of the land and enforced as such’ [Ref.8 – Principles of Public International Law, Ian Brownlie, 1979, 3rd Edition, p4].
I further contend that customary international law is binding on all states and is incorporated automatically into Scots law, see Trendtex Trading Corporation v. Central Bank of Nigeria [Ref.9 – Trendtex Trading Corporation v. Central Bank of Nigeria (1977) Q.B. 529 at 554] which supports the incorporation theory. In it, Lord Denning says,
‘I now believe that the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognise a change in the rules of international law. It is certain that international law does change …. Thus, when the rules of international law were changed (by the force of public opinion) so as to condemn slavery, the English courts were justified in applying the modern rules of international law.’
Lord Denning’s dictum in Trendtex was cited with approval by Lord Oliver in Maclaine Watson v. Department of Trade and Industry [Ref.10 – Maclaine Watson v. Department of Trade and Industry (1990) 2 A.C. 418 at 512]. And as recently as March 24 1999 in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte [Ref.11 – Regina v. Bow Street Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte, Law Report of The Times, March 25 1999], Lord Millett said,
‘Customary international law was part of the common law’.
I further contend that the Advisory Opinion of the International Court of Justice [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice] is controlling because it is the authoritative articulation of customary international law on the legality of the use or threatened use of nuclear weapons. It is thus of exceptional relevance to this court. [Note 1 – The Binding Nature of the ICJ Advisory Opinion].Moreover, a recent Times Law Report, of 19th May 1999, shows that national courts must take cognizance of ICJ Advisory Opinions. The report stated,
‘The government of Malaysia was obliged to communicate the advisory opinion to the Malaysian Courts, in order that Malaysian international obligations be given effect and Mr. Cumaraswamy’s immunity be respected’ [Ref. 12 – International Law Report, Law Report of The Times, May 19 1999].
The War Crimes Tribunals for the Former Yugoslavia and Rwanda that are explicity based on, and have articulated, customary international law as it stands today relating to humanitarian law, are also of relevance. The international laws that I rely upon in this case are applicable to every nation and every individual within these nations regardless of their rank or status.
Now, although customary international law is part of Scots law, in case of a conflict with a statute or precedent, that statute or precedent must prevail. Some people have taken the view that because the Trident programme is ‘official’ and because yearly defence budgets assign amounts of money to Trident, that therefore the nuclear weapons programme appears to be authorised by Parliament. In fact Parliament was initially kept totally in the dark – Prime Minister Attlee managed to spend one hundred million pounds on the nuclear programme without informing Parliament, and Churchill, when re-elected in 1951, admitted surprise at discovering this and maintained the same veil of secrecy.
Parliament is still kept uninformed about large parts of the nuclear programme. The current Government has refused even to hold a publicly accountable legal audit of Trident. There has been no specific Act of Parliament authorising Britain’s nuclear programme and I am not aware of any legislation which directly authorises Trident as such. As for the Budgetary vote, Parliament allocates funds to all government programmes some of which are lawful and some of which are not, as some judicial reviews have uncovered. The very existence of judicial reviews makes it clearly a nonsense to suggest that government programmes cannot be questioned in the UK courts. International law is incorporated into Scots law in so far as it is not in conflict with any specific statutory provision and as far as I am aware there is no such provision regarding Trident.
iii) The threat and use of Trident nuclear weapons is a crime in international law.
In this section I shall firstly deal with why and how nuclear weapons in general are unlawful and then go on to why British weapons in particular are unlawful. You will see that whereas there is some uncertainty about whether the threat and use of all nuclear weapons in all circumstances are always illegal, nevertheless when the analysis is carried to the specifics of the British Trident system there is no room for doubt, it being quite clear that the British nuclear weapon system is unlawful. But firstly, here is a quote from Judge Weeramantry of the ICJ, which I think says it all. If I could I would have left my defence with this one paragraph,
‘One wonders whether in the light of common sense, it can be doubted that to exterminate vast numbers of the enemy population, to poison their atmosphere, to induce in them cancers, keloids and leukemias, to cause congenital defects and mental retardation in large numbers of unborn children, to devastate their territory and render their food supply unfit for human consumption – whether such acts as these can conceivably be compatible with ‘elementary considerations of humanity’. Unless one can in all conscience answer such questions in the affirmative, the argument is at an end as to whether nuclear weapons violate humanitarian law, and therefore violate international law’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, Dissenting Opinion of Judge Weeramantry, p 29].
SOURCES OF INTERNATIONAL LAW
The Advisory Opinion of the ICJ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice] is very clear on the sources of international law as they relate to nuclear weapons in general and they may be briefly summarised as follows:-
· Declaration of St. Petersburg, 1868
Would be violated, in that unnecessary suffering would be caused and there would be no avoidance or minimising of incidental loss of civilian life.
· Hague Convention, 1907
Would be violated, in that unnecessary suffering would be caused and there would be no guarantee of the inviolability of neutral nations.
· Universal Declaration of Human Rights, 1948
Would be breached, in that long-lasting radioactive contamination would interfere with innocent people’s right to life and health.
· Geneva Conventions, 1949
Would be violated, in that protection of the wounded, sick, the infirm, expectant mothers, civilian hospitals and health workers would not be ensured.
The Protocols Additional to the Geneva Conventions, 1977
Would be violated in that there would be major breaches of international law by the armed forces and no compliance at all with the prohibition of widespread, long-term and severe damage to the environment.
· Non-Proliferation Treaty, 1968
Is being violated now, in that the UK is not undertaking to negotiate immediate and complete nuclear disarmament.
· Nuremberg Principles, 1946
All of the foregoing are defined as criminal acts in that Principle 6 defines crimes against the peace, war crimes and crimes against humanity. Specifically, Nuremberg Principle VI(a) defines Crimes against Peace as ‘Planning, preparation, initiation or waging of … a war in violation of international treaties, agreements or assurances … Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned’. Nuremberg Principle VI(b) defines War Crimes as ‘violations of the laws or customs of war’ and Nuremberg Principle VI(c) defines Crimes against Humanity as ‘murder, extermination … and other inhumane acts done against any civilian population … when … carried on in execution of, or in connection with any crime against peace or any war crime’.
· Protocols Additional to the Geneva Conventions, 1977
Compliance of armed forces with international law.
Prohibition of widespread long-term and severe damage to the environment.
Two of these conventions have been directly brought into UK law through the Genocide Act of 1948 and the Geneva Convention Act of 1949. Gordon’s Criminal Law of Scotland cites both of these as International Laws having jurisdiction within the Scottish Courts [Ref.3 – G.H.Gordon, Criminal Law of Scotland, 1978, Ch. 29, p 834].
THE TWO CARDINAL PRINCIPLES OF INTERNATIONAL LAW
‘states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets’;
‘it is prohibited to cause unnecessary suffering to combatants. It is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 78].
Although the Court did not consider whether the principles and rules of humanitarian law are part of jus cogens (i.e. peremptory norms of general international law from which no derogation is permitted), some judges broached this subject in their individual declarations or opinions. For example, President Bedjaoui had no doubt that most of the principles and rules of customary international law, in particular the two cardinal principles referred to above, are part of jus cogens. He says,
‘I have no doubt that most of the principles and rules of humanitarian law and, in any event, the two principles, one of which prohibits the use of weapons with indiscriminate effects and the other use of arms causing unnecessary suffering, are a part of jus cogens’.
He goes on to remind us that
‘the Court expressly stated that these fundamental rules constitute ‘intransgressible principles of international customary law’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 21 of President Bedjaoui’s declaration].
BINDING NATURE OF INTERNATIONAL LAW
These declarations, conventions and treaties that I have listed, taken together, form the core elements of modern customary international law binding in the UK, as the UK has not persistently objected to being bound by them. In fact, the UK has consistently agreed that these treaties do indeed form a part of general customary law, and has endorsed decisions by international tribunals in which their customary status was affirmed.
For example the UK confirmed these customary laws:-
i) at the Nuremberg International Military Tribunal where violations of the 1929 Geneva Convention constituted a war crime [Ref.13 – Bishop, International Law: Cases and Materials, 1014-51];
ii) in the Decision of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Tadic case of 1997 on violations of common article 3 of the four Geneva Conventions [Ref.14 – T.Meron, in 89 American Journal of International Law, 554, 1995]; and
iii) in the justification by the UK government for the 1980 War Crimes Act, whereby World War II suspects could be tried without breaching the principle of non-retroactivity because these acts were customary law crimes in 1945 [Ref.14 – T.Meron, in 89 American Journal of International Law, 554, 1995].
In other words the international laws that apply to nuclear weapon use are being used at this very moment in time to try war crimes that occurred in Rwanda and Former Yugoslavia. These customary laws are binding on all states at all times.
GENERAL ILLEGALITY OF NUCLEAR WEAPONS
It might be as well to note here that the only case ever brought on behalf of the victims of Hiroshima and Nagasaki in the Shimoda Case, successfully argued that the bombings breached international law and were in effect war crimes [Ref.17 – Ryuichi Shimoda et al vs.The State, Tokyo, December, 1963].
The whole text and tenor of the ICJ’s Opinion make it arguable that even in extremis threat or use is likely to be unlawful.
· The ICJ Advisory Opinion specified that ‘the threat or use of nuclear weapons would be generally contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 105 2E].
· The ICJ Opinion also envisioned no circumstances under which the use of nuclear weapons would not violate international law saying ‘none of the states advocating the legality of the use of nuclear weapons under certain circumstances, including the ‘clean’ use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield weapons’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 94].
· The ICJ acknowledged the ‘unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 36].
· In view of those unique characteristics the ICJ held that ‘the use of such weapons in fact seems scarcely reconcilable with respect for such requirements’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 95].
· The ICJ held ‘that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance with the principle of proportionality’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 43].
· The ICJ held that ‘the declared readiness of a State to use force must be a use of force that is in conformity with the UN Charter’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 47] and with the principles and rules of law applicable in armed conflict ‘at the heart of which is the overriding consideration of humanity’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 95]. The European Court of Human Rights recognises the priority of humanitarian considerations over national security. For instance in the Chahal v UK case in 1997 where it declared that Article 3 of the European Convention on Human Rights ‘prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct’ and that ‘no derogation from it is possible …. even in the event of a public emergency threatening the life of the nation’ [Ref.19 – Chahal v United Kingdom, 1997, 23 E.H.R.R. 413, p 413].
· The ICJ held that the ‘fundamental rules (of humanitarian law) are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 79].
In conclusion, the Advisory Opinion, as a whole, gives a presumption of illegality. I therefore contend that it is the prosecution who should have the burden of proving in the light of the Opinion, that Trident is not illegal. If they cannot discharge that burden of proof then it is arguable that I had ‘reasonable excuse’ for disarming Maytime.
POSSIBLE LAWFUL USE OF NUCLEAR WEAPONS
The only possible loophole that may have been left by the ICJ was when the Court stated
‘in view of the present state of international law viewed as a whole … and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 105 2E].
However, it is significant that the President of the ICJ stated that this
‘cannot in any way be interpreted as a half-open door to the recognition of the legality of the threat or use of nuclear weapons’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 11 of President Bedjaoui’s declaration].
It is noteworthy that all the Judges made appended statements, many of them very detailed and closely reasoned. On reading these appended opinions it becomes quite clear that 6 of the 14 Judges (Ranjeva, Herczegh, Ferrari Bravo, Shahahbuddeen, Weeramantry and Koroma) all believe that any threat/use of nuclear weapons will always be unlawful; furthermore, 2 Judges (Bedjaoui and Vereschetin) argued that although the threat or use of nuclear weapons could not be considered lawful, the current state of international law does not enable us to confidently assert that there is a prohibition of this nature. This reflects a particular doctrine of international law, in which permission and prohibition have to be established individually and are not simply by the demise of the other; this follows from (they believe) the incomplete nature of international law. Bedjaoui specifically wrote his Declaration to explain why he used his casting vote for the adoption of paragraph 105 2(e). In paragraph 11 of his Declaration he states very clearly, ‘I cannot sufficiently emphasize the fact that the Court’s inability to go beyond this statement of the situation cannot in any way be interpreted as a half-open door to the recognition of the legality of the threat or use of nuclear weapons’. He also stated that ‘at no time did the Court lose sight of the fact that nuclear weapons constitute a potential means of destruction of all mankind’ [para. 9]. In paragraph 20 he says ‘The very nature of this blind weapon therefore has a destabilizing effect on humanitarian law which regulates discernment in the type of weapon used’. In summary 8 – a majority – of Judges believed that any threat/use of nuclear weapons could not be considered lawful.
ILLEGALITY OF BRITISH NUCLEAR WEAPONS
If we apply the principles of international law to the Trident system presently deployed, along with the current British defence policy as outlined in the Strategic Defence Review and the NATO Strategic Concept Document, and place this within the context of the destructive capacity of the warheads and their likely targets, then it is quite clear that British Trident is unlawful. The Trident nuclear warheads, of 100-120 kilotons, have assigned to them, specified military targets in and around Moscow. Such use of these particular nuclear weapons could not distinguish between civilian and military targets, nor are they intended to do so. The reason nuclear weapons are targetted in this way is to try to deter war by threatening mass destruction. The awful problem being that if nuclear deterrence fails and the bluff is called, the mass destruction actually takes place. The purpose of Trident is to terrorise and to create ‘incalculable and unacceptable’ risks [Ref.20 – 1991 NATO Strategic Concept Document, Article 38]. The whole point of ‘nuclear deterrence’, however fudged about with, is to threaten mass destruction. This is criminal.
BRITISH WAR CRIMES
A threat or use of nuclear weapons must
‘be compatible with the requirements of the international law applicable in armed
conflicts’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 105 2D].
The ICJ confirmed that
‘States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets …. States do not have unlimited freedom of choice of means in the weapons they use’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 78].
The threat to target civilians whether as an unprovoked attack or as a reprisal is therefore unlawful. In the oral statement that the UK gave to the ICJ on November 15, 1995, Sir Nicholas Lyell stated that
‘…. even a military target must not be attacked if to do so would cause collateral civilian casualties or damage to civilian property which is excessive in relation to the concrete and direct military advantage anticipated from the attack’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, CR 95134, p.471].
Trident warheads of 100 kilotons are too powerful to distinguish between civilian and military targets and their long lasting effects cannot be contained in space nor in time and therefore violate international law.
We are not as constrained as the ICJ which was asked to consider a general question and did not have the
‘elements of facts at its disposal’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 97]
to enable it to be more specific. We are able to look at the specific facts of the British nuclear weapon system and can thus judge whether 48 100 kiloton warheads, or even a single 100 kiloton warhead, could be used lawfully according to the principles and interpretation of the ICJ Opinion.
I contend that the use of British nuclear weapons as deployed at this moment on Trident submarines would constitute a war crime as determined by Article 8 (2) (b) parts iv and v of the International Criminal Court Statute.
‘War crimes means …. serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts; …. (iv) Intentional launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated, (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives’ [Ref.15 – UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court].
I believe that the British Nuclear Trident system is an immediate and ongoing danger to all life on the planet, a threat to international peace and is unlawful within the terms of the ICJ Opinion.
· The ICJ put the matter very succinctly. ‘By its very nature …. nuclear weapons …. release not only immense quantities of heat and energy, but also powerful and prolonged radiation …. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystems of the planet’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 35]. This statement about nuclear weapons in general is just as true about the British nuclear weapon system in particular.
· Scotland is home to the British nuclear armed Trident submarines. There is always one Trident submarine on 24 hour patrol at all times. Each Trident submarine has 48 warheads of from 100-120 kilotons. 100 kilotons is 8 times more powerful than the bomb used against Hiroshima. That destruction in Hiroshima was ruled a war crime in the Shimoda Case.
· ‘Today the scale of Britain’s nuclear capability and the way it is deployed suggest that it remains oriented principally against Russia. An attack using the warheads on one submarine against likely targets in the Moscow area would result in over 3 million deaths …. and …. there would also be massive nuclear fallout over urban areas. Thousands of people would die over a 4 to 12 week period from this fallout’. Other potential targets are Russian Northern Fleet submarine bases. In Britain there are towns and villages close to every key submarine facility. The same is true of the Russian bases near Murmansk. Trident warheads exploding above these bases would cause devastation over a wide area and in each case would result in thousands of civilian casualties in urban areas [Ref.22 – Statement from the witness box and appended productions – Trident, Britain’s weapon of mass destruction, John Ainslie, March 1999, p1]. The areas affected would also be dangerous to rescue workers and civilians who would want to use the area in the future.
It is a general principle of law recognised by civilized nations that a person is presumed to intend the necessary and foreseeable consequences of their actions.
PREPARATIONS FOR WAR CRIMES ARE THEMSELVES WAR CRIMES
The preparation for war crimes is itself a crime, as made most explicit in the International Criminal Court Statute Article 25 (3).
‘In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: ….(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission’ [Ref.15 – UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court].
This is a culmination of various precedents like the last paragraph of Article 6 of the Charter of the International Military Tribunal at Nuremberg on
‘instigators and accomplices participating in the formulation …. of a common plan or conspiracy’ [Ref.16 – Charter of the International Military Tribunal at Nuremberg, Article 6].
The criminal activities that I was trying to prevent were the deployment, threat and use of British nuclear weapons. The Prime Minister and other officers of the state are engaged in the planning and preparation for use of nuclear weapons, in that they are actively deploying nuclear weapons, of such a size that they could never be used lawfully. These are activities that incur individual criminal responsibility in international law. Any use of current British nuclear weapons would be manifestly unlawful and thus policy makers, state employees, researchers and technicians are engaged in the planning and preparation of gross violations of customary humanitarian law, itself a crime under international law. In other words, working in a laboratory that does research essential for the deployment of an illegal weapon of mass destruction is in itself unlawful. Under the Rome Statute for the International Criminal Court it would be considered as providing the means for the commission of a war crime.
The British government have never explained to the ICJ nor to the British public how they could possibly use their nuclear weapons legally – they haven’t even been able to outline one hypothetical example. I refer you here to the evidence that I gave from the witness box in the correspondence TP2000 has had with the government on these topics. The government have, in fact, been very careful to say that they could never foresee the precise circumstances and could therefore not determine the legality until the time came to use them. I think it is quite clear that they are unable and unwilling to open themselves up to proper independent legal scrutiny. The form of words the government usually use goes like this,
‘the legality or otherwise of any specific use of any nuclear weapons …. can only be determined in the light of all the circumstances applying at the time such use is being considered. It is impossible to anticipate in advance with any confidence the exact circumstances which might arise, and to speculate on particular hypothetical cases would serve no purpose’ [Ref.18 – Letter to Angie Zelter of 23/10/97 from Hazel Finch of the Ministry of Defence].
It is of course ludicrous to think that, if no such legal scrutiny and exercises had taken place before, that any thorough legal scrutiny of an actual use of nuclear weapons could take place in the heat of a war of self-defence in which the very survival of Britain might be at stake. And according to the ICJ Opinion this is the only circumstance in which the use of nuclear weapons might justifiably be used. The fact that the British government can come up with no hypothetical cases that could be presented into the public domain for legal scrutiny by the world community suggests there are none.
The ICJ held that
‘a use of force which is proportionate under the law of self-defence must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 42].
I think it would be useful to point out the UK’s main stumbling block by looking very briefly at the oral presentation that Sir Nicholas Lyell gave on the 15th November 1995 to the ICJ. It shows very clearly the mind-set of a State so used to nuclear deterrent thinking that it has forgotten what international humanitarian law is all about. After admitting that
‘there is no doubt that the customary law of war does prohibit some uses of nuclear weapons, just as it prohibits some uses of all types of weapons’,
he then undermines this by elaborating a situation when States are faced with invasion by overwhelming enemy forces. He states,
‘If all other means at their disposal are insufficient, then how can it be said that the use of a nuclear weapon must be disproportionate? Unless it is being suggested that there comes a point when the victim of aggression is no longer permitted to defend itself because of the degree of suffering which defensive measures will inflict’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, Nicholas Lyell’s November 15 1995 Oral Statement, p 46].
But this is the whole point of international humanitarian law – it is intended to limit the terrible effects of war, to ensure that there is a world and something worth living for after the conflict ends. This means self-restraint even in the midst of justified self-defence.
As Judge Koroma stated,
‘The right of self-defence is inherent and fundamental to all States. It also exists within and not outside or above the law. To suggest that it exists outside or above the law is to render it probable that force may be used unilaterally by a State when it by itself considers its survival to be at stake. The right of self-defence is not a licence to use force; it is regulated by law and was never intended to threaten the security of other States’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, Dissenting Opinion of Judge Koroma, p 3].
According to the President of the Court, Judge Bedjaoui,
‘self-defence – if exercised in extreme circumstances in which the very survival of a State is in question – cannot engender a situation in which a State would exonerate itself from compliance with ‘intransgressible’ norms of international humanitarian law …. It would thus be quite foolhardy unhesitatingly to set the survival of a State above all other considerations, in particular above the survival of mankind itself’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, Declaration of President Bedjaoui, para 22].
Even Christopher Greenwood, who appeared for the UK at the ICJ Hearings, later contributed to a series of articles on the Advisory Opinion published by the International Committee of the Red Cross in January 1997, and he argued,
‘To allow the necessities of self-defence to override the principles of humanitarian law would put at risk all the progress in that law which has been made over the last hundred years or so and raise the spectre of a return to theories of ‘just war’. Happily, it seems the Court did not intend to do anything of the kind’ [Ref.21 – Christopher Greenwood, International Committee of the Red Cross, No.316, January 1997, p.65-75].
Trident Ploughshares 2000, along with other NGOs, have been asking for clarity, asking for examples of what the UK would consider to be a lawful use of Trident nuclear weapons. We have never been given a straight answer. We believe that British Trident nuclear weapons are being used to put the fear of unimaginable horror into the ‘enemy’s’ mind, to threaten mass destruction. This is unlawful. There might conceivably be some uses of a 1 kiloton nuclear warhead targeted on military forces in the middle of the sea or at a tank in the middle of a desert that might be considered lawful, but conventional weapons can do an arguably better job without the unconscionable risk of nuclear escalation. And in any case this is not what Trident is configured to do. If we look at the actual warheads deployed on British Trident submarines at the moment, then we can see that the UK has not reduced all warheads to 1 kiloton or below, and most, if not all, targets envisaged by the MOD are in the vicinity of towns and cities, i.e. civilian populations. Any targeting of these with current Trident nuclear warheads would lead to massive loss of civilian life and thus be unlawful.
Moreover, present UK policy statements clearly show that, in any case, they are not limiting their use of nuclear threats to ‘extreme circumstances of self-defence’. The government clearly recognised that the UK was in fact in no danger of a threat to ‘its very survival’. The Strategic Defence Review conducted by the Government states,
‘The end of the Cold War has transformed our security environment. The world does not live in the Shadow of World War. There is no longer a direct threat to Western Europe or the United Kingdom as we used to know it, and we face no significant military threat to any of our Overseas Territories’ [Ref.23 – UK Strategic Defence Review, July 1998, Ch.2.23].
As the survival of Britain is not presently under threat, the present deployment of Trident submarines would be an unlawful threat even if the government vouched that there was only one nuclear warhead of under 1 kiloton actually deployed, yet alone the one hundred and forty four warheads of up to 120 kilotons each.
DEFENCE OF VITAL INTERESTS
It is obvious that British nuclear weapon deployment and policy is not purely concerned with self-defence or even with retaliation against nuclear attack from other nuclear weapon states but is also
‘to defend our vital interests to the utmost’
as expressed in the Rifkind Doctrine [Ref.24 – UK Defence Strategy: A Continuing Role for Nuclear Weapons? – Malcolm Rifkind, Speech, London, November 1993]. The Strategic Defence Review [Ref.23 – UK Strategic Defence Review, July 1998, Ch.2,4 & 5] specifically sees military power as
‘a coercive instrument to support political objectives’
which the rest of the report explicitly identifies as economic and oil-related. The government says in the Review that Trident must perform a ‘sub-strategic role’ and that they have plans to use ‘low-yield’ warheads against non-nuclear ‘rogue’ regimes in reprisal for attacks against their vital interests anywhere in the world. This is unlawful.
As Lord Murray (a former Lord Advocate of Scotland) pointed out in his speech on ‘Nuclear Weapons and the Law’, even a 1 kiloton bomb
‘would flatten all buildings within half a kilometre with up to 50% fatalities up to 1 kilometre and a prevailing wind could carry fall-out as far as 25 km downwind’ [Ref.25 – Nuclear Weapons and the Law – Lord Murray. Article based on text of speech given in Oxford Town Hall, 15 October 1998].
In the February 1998 Iraq Crisis there was talk of possible use of nuclear weapons against Iraq. Any such use would have been unlawful because by no stretch of the imagination were either the UK or the USA under threat of obliteration by Iraq. Remember that the only possible window of legality left undecided by the ICJ was
‘an extreme circumstance of self-defence, in which its very survival would be at stake’.
And yet in the Commons Debate on February 17, Foreign Secretary Robin Cook said that Saddam Hussein
‘should be in no doubt’
that if he were to use chemical weapons against air-strikes
‘there would be a proportionate response’ [Ref.26 – Hansard, February 17 1998].
Foreign Office sources said later that the US response to a chemical attack on its forces by Iraq would be
During a Pentagon press briefing on January 27 an official was asked whether the President had
‘ruled out a response to weapons of mass destruction with our own weapons of mass destruction’.
‘I don’t think we have ruled anything in or out in this regard. Our position is that we would respond very aggressively’.
Interviewed on BBC Radio 4 on February 18 Defence Secretary George Robertson was given an opportunity to deny the nuclear option and did not. Meanwhile, Trident left its Faslane base on February 17 on an unscheduled patrol. All these are understood signals suggesting that nuclear weapons could be considered. They were meant to be understood as such.
This view is corroborated by Judge Schwebel in his Dissenting Opinion when he reports on testimony from Ambassador Ekeus in the Senate Hearings on the Global Proliferation of Weapons of Mass Destruction which shows that Iraq perceived there to be a threat to use nuclear weapons against it [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, Dissenting Opinion of Vice-President Schwebel, p 12]. Later on in the year as the crisis with Iraq continued along with US and UK bombing raids, the Trident submarine – Vanguard – made her presence obvious in the Mediterranean by appearing in Gibraltar during the last few days of November. This is exactly the sort of situation in which a political crisis, and some technological failure could lead to an unintended disaster.
I think we should all bear in mind that the whole purpose of nuclear deterrence is to create uncertainty about intentions. This means that the UK government has to persuade its ‘enemies’ that it might be willing to break the law. This is quite explicit in NATO doctrine. For instance, in the 1991 NATO Strategic Concept Document, Article 38 asserted that nuclear weapons are essential and permanent because they
‘make a unique contribution in rendering the risks of any aggression incalculable and unacceptable’ [Ref.20 – 1991 NATO Strategic Concept Document, Article 38].
If the effect of a nuclear weapon is incalculable and unacceptable then it also follows that it is unlawful. Nuclear weapons are useful only in so far as they can be used to make unlawful threats. However, such political duplicity should not fudge the issues in a court of law. Nuclear deterrence may be official UK policy but that does not make it lawful.
Please may I stress the words used in the ICJ Opinion – the only possible lawful use, and thus lawful threat, of nuclear weapons by a state might possibly, but not definitely even then, be
‘in an extreme circumstance of self-defence, in which its very survival would be at stake’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 105 2E].
Not the survival of its troops in some foreign land but the survival of the very state itself.
Also implicit in this statement where the wording is ‘its very survival’ is that a state cannot use its nuclear weapons to protect another state whose survival is at stake. UK and NATO policy remains that nuclear weapons could be used in collective self-defence. In other words, the UK’s reservation of her right to use nuclear weapons in defence of other states, such as when Iraq invaded Kuwait, is a violation of international law.
CRIMINALITY OF NUCLEAR DETERRENCE
Now just as the use of British nuclear weapons would be illegal and criminal so is the very threat to use them, which is what Trident deployment and our Government’s reliance upon nuclear deterrence is all about. In this regard I can do no better than refer you to Professor Boyle’s paper on ‘The Criminality of Nuclear Deterrence’ [Ref. 27 – The Criminality of Nuclear Deterrence, Francis Boyle, Social Action, Vol.49, April-June 1999]. Professor Francis Boyle quotes the whole of paragraph 47 – which he calls one of the most important passages of the Advisory Opinion. This paragraph says,
‘In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence. Whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow certain political or economic paths. The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State – whether or not it defended the policy of deterrence – suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal’.
Francis Boyle explains that this passage from the Advisory Opinion directly calls into question the whole basis of so-called nuclear deterrence as being lawful. He says,
‘Since the commission of mass extermination is clearly illegal and criminal, the threat to commit mass extermination is likewise clearly illegal and criminal. Hence nuclear deterrence is clearly illegal and criminal’
He goes on continuing to spell it out,
‘since the annihilation of cities and the mass extermination of millions of human beings would clearly be illegal, then it is also illegal for a state to threaten to do this. That is precisely what nuclear deterrence as currently practised by the world’s nuclear weapon states is all about: Mutual Assured Destruction or MAD’.
BRITISH CRIMES AGAINST PEACE
Furthermore, the ICJ Opinion appreciated
‘the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 99].
It ruled unanimously 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’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 105F].
It specifies that
‘The legal import of that obligation …. is …. to achieve a precise result – disarmament in all its aspects’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 99].
It is apparent that none of the world’s nuclear weapon states has discharged these obligations of both customary and conventional international law. This is in fact a Crime against Peace as defined in the Nuremberg Principle VI(a) which says that Crimes against Peace are
‘Planning, preparation, initiation or waging of …. a war in violation of international treaties, agreements or assurances …. Participation in a common plan or conspiracy for the accomplishment of any of the foregoing’ [Ref.16 – Nuremberg Principle VI(a)].
The UK has made clear it has no immediate intention of eliminating its Trident system. The Strategic Defence Review specifies plans for upgrading Trident in the medium term and keeping options open for a replacement in the long term [Ref.23 – UK Strategic Defence Review, July 1998, & Ref.28 – Britain’s Strategic Defence Review: An Assessment of the Nuclear Component, Commander Robert Green, Royal Navy Retired, 1998]. Recent press revelations and a report by M.P. Alan Simpson entitled ‘The Next Chevaline Scandal?’ presents evidence of the new refurbishment programme at Aldermaston costing one hundred and fifty million pounds and a linkage with the US ‘son of Trident’ programme to upgrade nuclear warheads. There is proof of increased scientific collaboration between Britain, France and the US. Simpsons report concludes,
‘there is strong evidence that Britain is currently involved in the development of prototype designs to replace the current Trident nuclear warhead’ [Ref.29 – The Next Chevaline Scandal? – Alan Simpson and CND, 11/8/99].
The UK’s refusal to disarm Trident is flouting the ICJ Opinion and Article VI of the Nuclear Non-Proliferation Treaty. The continuing development of new nuclear weaponry is a flagrant abuse of power which is deeply destabilising to the world order constituting as it does a violation of international law.
Now to move onto the fourth of the six elements I have to prove.
iv) I honestly believe that this crime was being committed and was imminent.
There is no dispute to most of the facts I have been citing and certainly not to the fact that there is at least one Trident submarine, armed with at least 48 nuclear warheads of approximately 100 kilotons, on patrol at all times. Successive British Prime Ministers (including Tony Blair) have all said that they are willing to press the button, if need be to authorise release of the nuclear weapons.
I explained under oath in the witness box that I have honestly believed for the last 20 years in the immorality, inhumanity and also the illegality of nuclear weapons. My words and actions are I hope enough to convince you that I had and continue to have an honest belief that gross crimes are being committed with the deployment of nuclear weapons and that these crimes are ongoing, immediate, present, imminent. I hope that the evidence that has been put before you goes even further and shows that my belief is not just a personal misguided belief but in fact is reasonable and based on factual evidence.
v) I reasonably believed there was a practical link between my action and the prevention of crime.
The prevention of gross abuses of international humanitarian law such as the threat and use of nuclear weapons is complex and involves the action of very many people over a long time span. The word crime in fact is a simplification – in that it is made up of very many separate crimes. Each time one of the nuclear powers threatens to use its nuclear weapons, either in the back corridors of the UN, or in its ‘secret’ despatches or negotiations, or openly by scarcely veiled threats, each time a Trident submarine goes out on patrol with its nuclear warheads, or a new warhead is manufactured, or research and testing goes on, each one of these are separate criminal offences and ones which add up to the totality of the overall global nuclear crime that I and many other ordinary people are trying to stop.
In other words, the crime of threatening to use nuclear weapons and the actual deployment of Trident missiles is ongoing and imminent and requires immediate action by global citizens to prevent. The prevention may yet take several years and many more preventative disarmament actions but this does not invalidate the imminent need for action. Just because the process of prevention is lengthy and complex and involves many people and different actions does not invalidate the separate but necessary elements of the practical crime prevention.
Actions such as ours, on the simplest level, have the power to prevent our ‘leaders’ from daring to use nuclear weapons. Without such continued public pressure, leaders would often feel able to get away with even more criminal and inhumane actions than they presently do. A democratic state is not just a gift and a right, it is a responsibility as well. If citizens do not responsibly demonstrate against and resist the operation of inhumane acts by their government then their governments are likely to become increasingly corrupt.
The nuclear weapons crime is so big, so entrenched and seemingly so immovable that many of us feel totally disempowered and do not feel that we can do anything to prevent it. However, I believe that if we each do what we can in a peaceful and accountable way then this will create change and prevent crime. My disarmament action with Ulla and Ellen on June 8th within the TP2000 campaign was just such an act, small but capable of preventing crime.
Our act has also brought to the public’s attention the illegality of not only Trident and nuclear weapons but also the illegality of all the essential supporting and preparatory parts of the Trident system that at first glance may not appear connected to nuclear crime. As I have made clear the preparations and support for a war crime are themselves war crimes. The research that DERA carried out on Maytime was an essential part of keeping Trident hidden under the oceans. Disarming it helps prevent the overall crime.
Our disarmament act has also brought to this court’s attention the illegality of threatening to use nuclear weapons – perhaps the court will feel able to acquit us like those in other parts of the world. An acquittal would strengthen the rule of law and reaffirm the underlying morality upon which it is based. It would strengthen the independence of the judiciary and uphold a fundamental principle of the law – that all people and institutions must obey the law – that governments and military must obey the law as well as individuals – that no-one is above the law – that no one can threaten the lives of millions of innocents and get away with it for ever – that there comes a time within every system when justice must prevail.
It took many decades of civil resistance for slavery to be abolished but the frequent acquittals of individuals who had helped runaway slaves, in violation of the Fugitive Slave Act, helped the process of change along and eventually slavery was outlawed. Today, we can see continuing attempts to get Pinochet to stand before a court for his crimes against his own people and there are attempts to get Milosovic before the International Criminal Court for breaching basic humanitarian principles. Hopefully, there will also come a time when every court will accept that nuclear weapon systems are also incompatible with basic justice and will acquit those trying to prevent ‘official’ mass murder by disarming nuclear weapon systems.
vi) My action was reasonable in the circumstances. I had considered alternative courses of action, and I could not do anything else effective to prevent the crime.
I would like to remind you of my testimony where I showed you proof of my many years of voluntary peace work in which I used all the conventional and accepted methods for effecting change – I lobbied Parliament, presented petitions, wrote letters, demonstrated, vigiled, organised public meetings, wrote and published articles, and sat outside military bases. Millions like me around the world have done these things for over 50 years now. This may seem like an inflated claim but maybe we have forgotten the quarter of a million people at the Hyde Park Demonstration at the peak of the Cold War – and this was only in England. And we have succeeded, in so far as the vast majority of humankind agree that nuclear weapons are immoral, illegal, dangerous, a waste of resources and should be disarmed.
In the UK itself, a Gallup Poll taken in 1997 showed a total of 59% in the UK as a whole thought it would be best for the security of their community if Britain did not have nuclear weapons [Ref.30 – Polls, Gallup Poll of 5/9/97 – 10/9/97] and in a recent Teletext poll in April of this year, 1999, 85% of Scots said Scotland should not have nuclear weapons [Ref.30 – Polls, Teletext Poll of 29 April 1999]. However, in limited democracies like our own, there is often a gap between what the majority of people want and ask for and what they are given. I believe I have shown that I have done everything possible to try to persuade the UK government and military to stop threatening mass destruction and to prevent nuclear crime by disarming their nuclear weapon system themselves. I have therefore shown the court that there was nothing left for me to do, other than direct disarmament, that could effectively stop the crime of deployment of weapons of mass destruction.
The present TP2000 campaign, of which our disarmament of Maytime was a part, has been particularly open and accountable having gone to the extraordinary lengths of writing to the Prime Minister, Lord Advocate, Faslane Base Commanders (to mention only a few of the most relevant) with details of our Pledge to Prevent Nuclear Crime, our Nonviolence and Safety Pledge, our names and addresses, and having spelled out clearly what we were going to do and when and where. We gave them fully 5 months warning of our first open disarmament actions at Faslane and Coulport and have very slowly escalated our disarmament actions, continuing to keep the doors open for dialogue by regular updates of Pledgers names and continual questions relating to the illegality of Trident. You will remember that I read you the various Pledges from the witness box and presented to you a very few of the letters sent to various officials, including the two ‘Open Letters’ to the Prime Minister [Ref.22 – Statement from the Witness Box and appended productions – correspondence with officials].
I think it is quite clear from our Pledges and our Joint Statement that our disarmament of Maytime was reasonable in the circumstances. Although our actions are limited by our desire to remain nonviolent, peaceful and loving at all times, our actions are designed to be effective in that we are part of a campaign which has 143 Pledgers from 10 different countries, all pledged to make, or support others to make, continuous attempts to disarm the Trident system over several years. We have 40 supporting UK MPs, 120 supporting organisations and over five thousand people have already signed our supporting petition. This growing campaign has already shown that it can delay the testing and deployment of the fourth Trident, Vengeance, and we have a good chance of being able to prevent the actual use of other Tridents, even if only for a few days or weeks at a time, and it is very possible that the overall pressure will eventually lead to the government completing the disarmament for us.
No government can withstand for ever the pressure of deep public concern. Our disarmament action not only effectively disarmed a part of the Trident system, but also raised public awareness and alerted the Judiciary, Military and the Government, once again, to the untenable and dangerous misuse of power that Trident represents. It enables those within these institutions to now use their power to stop the UK’s threat to use nuclear weapons. If people like us do nothing and just stay at home, saying well we have done everything we can now, then there is much less likelihood that change will come about. History proves time and time again that change often comes about through peaceful direct action like our own.
One of the things that may be troubling you and which I therefore wish to address, is any fears that you may have that my actions, or indeed the actions of anyone within the TP2000 campaign, may be unsafe or dangerous. This is a subject that has caused deep thought and care. You only have to look at our Handbook, at the warnings, the nonviolence, the safety guidelines, to see that all of our disarmament actions are safe. We have no intention of damaging the reactors or missiles themselves or doing anything that would be unsafe for anyone. We are disarming a system and hope to prevent essential parts from working, like the research and maintenance, communication and guidance systems. My testimony from the witness box has shown that our action on June 8 was reasonable and safe.
Therefore, to sum up. I submit that the prosecution have not shown that I had no ‘reasonable excuse’ for my action. They have looked too narrowly at our actions and have made the grave mistake of assuming that because a government and armed forces are doing something ‘officially’ that this therefore somehow makes it ‘lawful’ in and of itself. To apply theft and property damage to people who are attempting to prevent mass murder, criminal activities that are on a qualitatively much larger scale, is to refuse to address the bigger picture and to my mind makes a mockery of the law.
I therefore urge you to find me not guilty of all charges because I did have ‘reasonable excuse’ for my actions.
3. INTERNATIONAL LAW DEFENCE
Judge Shahabuddeen said,
‘once it is shown that the use of a weapon could annihilate mankind, its repugnance to the conscience of the international community is not materially diminished by showing that it need not have that result in every case; it is not reasonable to expect that the conscience of the international community will, both strangely and impossibly, wait on the event to see if the result of any particular use is the destruction of the human species. The operative consideration is the risk of annihilation. That result may not ensue in all cases, but the risk that it can inheres in every case. The risk may be greater in some cases, less in others; but it is always present in sufficient measure to render the use of nuclear weapons unacceptable to the international community in all cases.’ [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, Judge Shahabuddeen’s Dissenting Opinion, p.9].
In my previous submissions I explained why UK nuclear weapons are unlawful and which international laws are being broken. I do not feel I need to go through it all again and would just remind you that the arguments I put before you, explaining what crimes I was trying to prevent, in arguing that I had reasonable excuse to disarm Maytime, apply equally to this international law defence. To summarize – I showed that any use of presently deployed UK nuclear weapons on Trident would breach all the following international laws:-
The Declaration of St. Petersburg of 1868 would be violated, in that unnecessary suffering would be caused and there would be no avoidance or minimising of incidental loss of civilian life;
The Hague Convention of 1907, would be violated, in that unnecessary suffering would be caused and there could be no guarantee of the inviolability of neutral nations;
The Universal Declaration of Human Rights, 1948, would be breached, in that long-lasting radioactive contamination would interfere with innocent people’s right to life and health;
The Geneva Conventions of 1949, would be violated, in that protection of the wounded, sick, the infirm, expectant mothers, civilian hospitals and health workers would not be ensured;
The Protocols Additional to the Geneva Conventions, 1977, would be violated in that there would be major breaches of international law by the armed forces and no compliance at all with the prohibition of widespread long-term and severe damage to the environment.
Also, the Non-Proliferation Treaty, of 1968, is being violated, in that the UK is not undertaking to negotiate immediate and complete nuclear disarmament.
Under the Nuremberg Principles of 1946 all the foregoing are defined as criminal acts in that Principle 6 defines crimes against the peace, war crimes and crimes against humanity. Specifically, Nuremberg Principle VI(a) defines Crimes against Peace as
‘Planning, preparation, initiation or waging of …. a war in violation of international treaties, agreements or assurances …. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned’.
Nuremberg Principle VI(b) defines War Crimes as
‘violations of the laws or customs of war’
and Nuremberg Principle VI(c) defines Crimes against Humanity as
‘murder, extermination …. and other inhumane acts done against any civilian population … when … carried on in execution of, or in connection with any crime against peace or any war crime’ [Ref.16 – The Nuremberg Principles].
It is every citizen’s right and duty to try and uphold international law and to prevent war crimes and crimes against the peace. My act of disarmament of Maytime on June 8 was designed to do just that. I was very heartened to read the last paragraph in Professor Boyle’s paper on the criminality of nuclear deterrence where he states that,
‘every person around the world possesses the basic human right to be free from this criminal practice of nuclear deterrence and its concomitant spectre of nuclear extinction as currently inflicted upon humanity by the world’s nuclear weapon states. All human beings possess the basic human right under international law to engage in nonviolent civil resistance activities designed for the express purpose of preventing, impeding or terminating the ongoing commission of these international crimes by the concerned government officials in the world’s nuclear weapon states’ [Ref. 27 – The Criminality of Nuclear Deterrence, Francis Boyle, Social Action, Vol.49, April-June 1999].
The Universal Declaration of Human Rights as the chief exponent of customary international law with regard to fundamental human rights is of relevance here. The preamble says:-
‘The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind shall strive …. by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction’ [Ref.31 – Universal Declaration of Human Rights, 1948].
The rights then outlined in the Charter are impossible to reconcile with the use of nuclear weapons. For instance to look at just the first Article where we are all asked to act towards one another in a spirit of brotherhood, it is obvious that this is impossible if we threaten indiscriminate mass destruction.
I therefore have a peaceful privilege, if not duty, under this UN Declaration of Human Rights, to effect adherence by the UK government and military to this Declaration.
The Nuremberg Charter also authorises me to act in order to prevent the commission of crimes recognised under international law. The International Military Tribunal, faced with the contention that international law provided no punishment for individuals, held as follows:
‘That international law imposes duties and liabilities upon individuals as well as states has long been recognised …. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced …. The true test, which is found in varying degrees in the criminal law of most nations …. is whether moral choice was in fact possible’ [Ref.16 – Judgement of the Nuremberg International Tribunal, 41, American Journal of International Law 12, 1947, at 220-221].
This duty derives from Article 8 of the Charter of the International Military Tribunal that states that the fact that the defendant
‘acted pursuant to order of his government or of a superior shall not free him from responsibility’
in international law [Ref.16 – Charter of the International Military Tribunal, Article 8].
Similarly, in the trial of German industrialists for war crimes committed during World War II, the Tribunal stated with respect to private individuals,
‘International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the government are criminal when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona. The application of international law to individuals is no novelty’ [Ref.32 – The Flick case, VI Trials of War Criminals, 1952. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, pp 237].
One example is that of the German businessmen who provided the Zyklon B gas that was used in the gas chambers in Nazi Germany and who were eventually found guilty and sentenced to death for their breaches of international law [Ref.33 – Zyklon B case, Law Reports of Trials of War Criminals, Vol.1, p 93, London 1947]. Saying they were only running a business, and providing jobs and pretending that they didn’t know what the gas was to be used for, was no defence for them.
I contend that if international law punishes individuals for complicity in the commission of war crimes, crimes against peace, crimes against humanity and offences against the peace and security of mankind, then, by inference, international law must authorise acts taken to prevent those crimes. To go back to the German industrialists who were found guilty after they had helped to kill thousands of people, it is quite obvious that any responsible citizen who had tried to prevent the gas from reaching the chambers, or had tried to prevent the research on the gas from taking place, even if she had caused some property damage, would have been acting lawfully.
Justice Jackson, Chief Prosecutor in the 1945 Nuremberg War Crimes Trial clearly establishes that the Nuremberg Principles binds citizens when he says,
‘The very essence of the Nuremberg Charter is that individuals have international duties which transcend national obligations of obedience imposed by the individual state’ [Ref.34 – 6 F.R-D. 69,110,1946. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, p237].
The Tokyo War Crimes Tribunal went so far as to declare,
‘Anyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent the commission of crimes’ [Ref.35 – Tokyo War Crimes Trial Decision. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, p 237].
Now the ICJ has confirmed that the Nuremberg Charter applies to nuclear weapons [Ref.1 – Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 80]. Thus military personnel should obey the Nuremberg Charter even if given a contrary order by a superior or by his national government. The British Manual of Military Law actually expresses this principle in stronger language saying,
‘If a person who is bound to obey a duly constituted superior receives from a superior an order to do some act or make some omission which is manifestly illegal, he is bound under a legal duty to refuse to carry out the order and if he does carry it out he will be criminally responsible for what he does in doing so’ [Ref.36 – British Manual of Military Law, Part 1, 12th Edition, Amendment No.14, p 157].
This would mean refusing to fire a 100 kiloton nuclear warhead. It also includes refusing to do the research and testing that enables the Trident submarines to hide beneath the waves with its terroristic weapons of mass destruction.
Accordingly, I contend that under international law I have a positive duty to take such steps as are reasonable and necessary to prevent the commission of war crimes and other violations of international humanitarian law and that this duty is supreme vis-a-vis the domestic law of any state, which includes Scotland.
However, I can understand if the Court might think that this is rather much to ask of ordinary people – that they act to prevent crime at all times. Was it really morally reprehensible, let alone criminal, for scared people not to block the trains on the way to Auschwitz? They certainly had a right but it may be going too far to say they had a duty. If the principle of individual responsibility for offences against international law or complicity in those offences, does not infer a positive duty to act to prevent them, because it is quite understandable that not everyone possesses the same resources and ‘moral choices’ as others to enable them to act to prevent crime, then it must at least imply a right to take such steps as are reasonably calculated to bring about that end. I thus submit therefore that I at least had a right to take action under international law, the reasonable exercise of which made my disarmament of Maytime lawful.
I therefore ask you to find me not guilty of all charges on the grounds that I was carrying out my international rights in trying to prevent gross breaches of international humanitarian law.
4. MORAL DEFENCE
Killing children, old people, the sick and other innocents is wrong. Threatening mass destruction is wrong. Long-lasting radioactive contamination of the environment that will affect the unborn generations of all living beings is wrong. Nuclear weapons that do all of these things are wrong. There is a moral necessity for me to obey my conscience regardless of any narrow technicalities of law. If the legal system cannot find me not-guilty, even though we have tried to find an honourable way for the court to be able to acquit us, then it will have failed us all. This is because the law is meant to be founded upon basic human values of common decency and morality. The law loses its legitimacy and respect in direct proportion to how far away it strays from these basic precepts of natural justice.
I therefore urge you to find all three of us not guilty of all charges. Thank you for your patience.
Ref.1. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, including all appended dissenting opinions and Nicholas Lyell’s November 15 1995, Oral Statement.
Ref.2. Moss v. Howdle, 1997, S.C.C.R. 215.
Ref.3. G.H.Gordon, Criminal Law of Scotland, 1978, Ch 13, p 419 & Ch 29, p 834.
Ref.4. Cases Upholding Illegality of Nuclear Weapons – High Court, Stuttgart, Germany, 1995; People v. Jarka, 1995, Case No. 002170 in the Circuit Court of Lake County, Waukegan, Illinois, US, Judge Alphonse E. Witt; and People v. Lemnitzer, 1982 in ‘Nuclear War, Citizen Intervention and the Necessity Defence’, Aldridge and Stark, Santa Clara Law Review, Vol.26, Spring 1986, No.2; Kitsap County, Washington, District Court Judge James Riehl, June 10 1999, Ground Zero Center for Nonviolent Action, 16159 Clear Creek Rd NW, Poulsbo, WA, 98370.
Ref.5. MacDougall v. Yuk-Sun Ho, 1985 S.C.C.R. 199.
Ref.6. Mortensen v. Peters, 1906, 14 S.L.T. 227.
Ref.7. The Christina, 1938, A.C. 485 at 497, per Lord Macmillan – House of Lords.
Ref.8. Principles of Public International Law, Ian Brownlie, 1979, 3rd Edition, p.4.
Ref.9. Trendtex Trading Corporation v Central Bank of Nigeria, 1977, Q.B. 529 at 554.
Ref.10. Maclaine Watson v Department of Trade and Industry, 1990, 2 A.C. 418 at 512.
Ref.11. Regina v. Bow Street Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte, Law Report of The Times, March 25 1999.
Ref.12. International Law Report, Law Report of The Times, May 19 1999.
Ref.13. Bishop, International Law: Cases and Materials, 1014-51.
Ref.14. T.Meron, in 89 American Journal of International Law, 554, 1995.
Ref.15. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court.
Ref.16. Charter of International Military Tribunal at Nuremberg, Articles 6 & 8; The Nuremberg Principles; Judgement of the Nuremberg International Tribunal, 41, American Journal of International Law 12, 1947, at 172.
Ref.17. Ryuichi Shimoda et al vs.The State, Tokyo, December, 1963; also commentary in Judge Shahabuddeen’s Opinion contained in Ref.1.
Ref.18. Letter to Angie Zelter of 23/10/97 from Hazel Finch of the Ministry of Defence.
Ref.19. Chahal v. United Kingdom, 1997, 23 E.H.R.R. 413, p 413.
Ref.20. 1991 NATO Strategic Concept Document, Article 38.
Ref.21. Christopher Greenwood, International Committee of the Red Cross No.316, January 1997, p.65-75.
Ref.22. Statement from the Witness Box and appended productions.
Ref.23. UK Strategic Defence Review, July 1998.
Ref.24. UK Defence Strategy: A Continuing Role for Nuclear Weapons? – Malcolm Rifkind, Speech, London, November 1993.
Ref.25. Nuclear Weapons and the Law – Lord Murray. Article based on text of speech given in Oxford Town Hall, 15 October 1998.
Ref.26. Hansard, Commons Debate on February 17 1998, Foreign Secretary Robin Cook..
Ref.27. The Criminality of Nuclear Deterrence, Francis Boyle, Social Action, Vol.49, April-June 1999.
Ref.28. Britain’s Strategic Defence Review: An Assessment of the Nuclear Component, Commander Robert Green, Royal Navy Retired, 1998.
Ref.29. The Next Chevaline Scandal? – Alan Simpson and CND, 11/8/99.
Ref.30. Polls, Gallup Poll of 5/9/97 – 10/9/97 and Teletext Poll of 29 April 1999.
Ref.31. Universal Declaration of Human Rights, 1948.
Ref.32. The Flick case, VI Trials of War Criminals, 1952. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, p 237.
Ref.33. Zyklon B case, Law Reports of Trials of War Criminals, Vol.1, p 93, London 1947.
Ref.34. 6 F.R-D. 69,110, 1946. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, p 237.
Ref.35. Tokyo War Crimes Trial Decision. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, p 237.
Ref.36. British Manual of Military Law, Part 1, 12th Edition, Amendment No.14, p 157, para 24.
1. THE BINDING NATURE OF THE ICJ ADVISORY OPINION
Advisory Opinions do not bind States because there are no parties to the proceedings to bind. However, States and international organisations which appear before the Court provide information and defend their view of the proper legal resolution of the question posed. The Opinion is to provide the requesting organisation with advice regarding the state or content of the law which then guides that organisation’s future behaviour.
The most authoritative commentary on the work of the International Court is Rosenne’s ‘The Law and Practice of the International Court, 1920-1966 (Nijhoff, The Hague, 1997, 4 Vols) and they are issued to ICJ Judges on their election. He states in Volume III p 1758-59 ‘An advisory opinion states the law at large, erga omnes so to speak (i.e. binding on all States). No state can deny the international capacity of the UN following the advisory opinion …’
Thus, this Advisory Opinion is an authoritative statement of customary international law on this question, and thus the customary rulings it contains are binding on all States. Further, because it states custom, the rules it expands must ipso facto form part of Scots law.
2. REBUTTAL OF UK GOVERNMENT’S SELF-DEFENCE ARGUMENT
The Lord Advocate’s reply stated that the ICJ ‘concluded by a large majority that there is in international law no comprehensive and universal prohibition on the use of nuclear weapons as such’ [para.105 2(b)]. However, this was accepted by the Court on a vote of 11 to 3 – and completely distorts the overall message of the ICJ Opinion by ignoring the very first part of the dispositif from which he quotes: ‘There is neither in customary nor conventional international law any specific authorization of the threat or use of nuclear weapons’ [para.105 2(a)] – which was accepted unanimously. Then more importantly it goes on to confirm the very basis of all weapon use, of whatever kind, when it stipulates that a threat or use of nuclear weapons would have to be ‘compatible with the requirement of the international law applicable in armed conflict’ [para.105 2(d)] – again this was agreed unanimously. This leads on to the most contentious part of the dispositif [para.105 2(e)] where it is stated that ‘It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake’ – this was passed 7 to 7, by the President’s casting vote.
It is at this point that it is most important to refer to all the separate appended opinions and declarations of the individual Judges, which also form part of the Advisory Opinion. It is noteworthy that all the Judges made such statements, many of them very detailed and closely reasoned. On reading these appended opinions it becomes quite clear that 6 of the 14 Judges (Ranjeva, Herczegh, Ferrari Bravo, Shahahbuddeen, Weeramantry and Koroma) all believe that any threat/use of nuclear weapons will always be unlawful; furthermore, 2 Judges (Bedjaoui and Vereschetin) argued that although the threat or use of nuclear weapons could not be considered lawful, the current state of international law does not enable us to confidently assert that there is a prohibition of this nature. This reflects a particular doctrine of international law, in which permission and prohibition have to be established individually and are not simply by the demise of the other; this follows from (they believe) the incomplete nature of international law. Bedjaoui specifically wrote his Declaration to explain why he used his casting vote for the adoption of paragraph 105 2(e). In paragraph 11 of his Declaration he states very clearly, ‘I cannot sufficiently emphasize the fact that the Court’s inability to go beyond this statement of the situation can in no manner be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons’. He also stated that ‘at no time did the Court lose sight of the fact that nuclear weapons constitute a potential means of destruction of all mankind’ [para. 9]. In paragraph 20 he says ‘The very nature of this blind weapon therefore has a destabilizing effect on humanitarian law which regulates discernment in the type of weapon used’. In summary 8 – a majority – of Judges believed that any threat/use of nuclear weapons could not be considered lawful.
Paragraph 104 of the ICJ Advisory Opinion states very clearly that the whole of the Opinion is important in understanding the meaning of the dispositif, ‘At the end of the present Opinion, the Court emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraphs 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.’
3. SEVEN PRINCIPLES OF HUMANITARIAN LAW
The ICJ Advisory Opinion clearly states the sources of international law as they relate to nuclear weapons and enumerates seven principles relating to unnecessary suffering, proportionality, discrimination, non-belligerent states, genocide, environmental damage and human rights. It clearly states that ‘In view of the unique characteristics of nuclear weapons ….. the use of such weapons in fact seems scarcely reconcilable with respect for such requirements’ [para. 95]. Even with respect to the use of a nuclear weapon ‘in an extreme circumstance of self-defence, in which its very survival would be at stake’ [para. 105 2(e)] the ICJ held that the ‘fundamental rules (of humanitarian law) are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’ [para. 79].
4. ADDITIONAL PROTOCOLS OF 1977 TO THE GENEVA CONVENTIONS OF 1949
The UK ratified these in 1998 but made a ‘clarificatory statement’ which said ‘the rules so introduced do not have any effect on, and do not regulate or prohibit the use of nuclear weapons’. Article 19 of the 1969 Vienna Convention on the Law of Treaties states that any reservation must not be incompatible with the object and purpose of the treaty. The object and purpose of Geneva Protocol I is to protect civilians in armed conflicts – which nuclear weapons cannot do. This may be why the UK said in a letter from the FCO, dated 11th February 1998, that its statement was a ‘clarificatory statement’ that ‘reflects a widespread position and is similar to those made by several other parties on ratification and by the UK on signature in 1978’.
Such a statement, according to Rupert Ticehurst, an international law lecturer at Kings College, London, ‘is simply the State indicating how it believes a treaty should be interpreted. If that understanding is incorrect in that many other States do not agree then it has absolutely no effect. It is therefore weaker than a reservation. The UK cannot say ‘we are not bound by the Protocol because we issued a statement of understanding’.
Part 4 of Protocol 1 says, ‘In order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants’.
5. DEFINITION OF THREAT OF USE – POSSESSION
Para 47 of the Opinion makes it quite clear that it is illegal to threaten something which is itself illegal, ‘If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4.’ The UK possesses nuclear weapons which are constantly deployed on submarines ready to use along with statements of conditional willingness to use them, which we can find in policy documents of the government. I believe this is such a stated readiness to use.
Para 48 of the Opinion also states, ‘Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence … necessitates that the intention to use nuclear weapons be credible. Whether this is a ‘threat’ contrary to Article 2, paragraph 4, depends upon whether the particular use of force … would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it would be unlawful under the law of the Charter.’ Even the US Judge, Schwebel, in his Dissenting Opinion states [Page 1]‘that nuclear weapons have been manufactured and deployed by States for some 50 years; that in that deployment inheres a threat of possible use.’ He goes on to explain, ‘They have threatened their use by the hard facts and inexorable implications of the possession and deployment of nuclear weapons; by a posture of readiness to launch nuclear weapons 365 days a year, 24 hours of every day; by the military plans, strategic and tactical, developed and sometimes publicly revealed by them; and, in a very few international crises, be threatening the use of nuclear weapons. In the very doctrine and practice of deterrence, the threat of the possible use of nuclear weapons inheres.’
As I contend that UK nuclear warheads of 100 kilotons could never be used in conformity with the principles of necessity and proportionality, therefore continuous active deployment along with the stated readiness to use them when necessary, is in my opinion an illegal threat to use nuclear weapons and is as such unlawful.
SOME USEFUL QUOTES FROM ICJ JUDGES
Judge Bedjaoui, Algeria.
Para.2 – ‘With nuclear weapons, humanity is living on a kind of suspended sentence. For half a century now these terrifying weapons of mass destruction have formed part of the human condition. Nuclear … fear has gradually become man’s first nature … a nightmare whose end he cannot yet foresee.’
Para.6 – ‘Humanity is subjecting itself to a perverse and unremitting nuclear blackmail. The question is how to put a stop to it.’
Para.20 – ‘Nuclear weapons can be expected – in the present state of scientific development at least – to cause indiscriminate victims among combatants and non-combatants alike, as well as unnecessary suffering among both categories. The very nature of this blind weapon therefore has a destabilising effect on humanitarian law which regulates discernment in the type of weapon used. Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law, not to mention their long-term effects of damage to the human environment, in respect to which the right to life can be exercised. Until scientists are able to develop a ‘clean’ nuclear weapon which would distinguish between combatants and non-combatants, nuclear weapons will clearly have indiscriminate effects and constitute an absolute challenge to humanitarian law. Atomic warfare and humanitarian law therefore appear to me mutually exclusive: the existence of the one automatically implies the non-existence of the other.’
Para.21 – ‘I have no doubt that most of the principles and rules of humanitarian law and, in any event, the two principles, one of which prohibits the use of weapons with indiscriminate effects and the other use of arms causing unnecessary suffering, are a part of ius cogens. … the Court expressly stated the view that these fundamental rules constitute “intransgressible principles of international customary law”’.
Para.24 – ‘nuclear disarmament will always remain the ultimate goal of all action in the field of nuclear weapons … the goal is no longer utopian and … it is the duty of all to seek to attain it more actively than ever.’
Judge Ferrari Bravo, Italy.
Page 220 – talking about the very first UN resolution to eliminate all nuclear weapons – ‘As a matter of fact that resolution establishes – and in my view clearly establishes – the existence of an actual undertaking of a solemn nature to eliminate all atomic weapons whose presence in military arsenals was considered illegal … illegality already existed in advance of that time (he is talking about the Cold War here) and any production of nuclear weapons had, as a consequence, to be justified in the light of that stigma of illegality which could not be effaced’.
Page 221 – ‘I have already said that, in my view, the idea of nuclear deterrence has no legal force and I would further add that the theory of deterrence, while creating a practice of nuclear-weapon States and their allies, is not able to create a legal practice which could serve as the basis for the creation of an international custom … it is thanks to the doctrine of deterrence that the revolutionary scope of Article 2, paragraph 4, of the Charter has been reduced, while at the same time the scope of Article 51, which ran counter to it according to a traditional logic, has been extended as a whole series of conventional constructions have taken shape around that norm, as can be seen from the two systems governing respectively the Atlantic Alliance on the one hand and on the other the Warsaw Pact, while it was in existence.’
Para.2 – ‘The nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and of the principle of neutrality.’
Judge Herczegh, Hungary.
Page 1 – ‘The fundamental principles of international humanitarian law … categorically and unequivocally prohibit the use of weapons of mass destruction, including nuclear weapons. International law does not recognize any exceptions to these principles.’
Judge Higgins, U.K.
Para.4 – ‘the Court confirmed the existence of a rule of proportionality in the exercise of self-defence under customary international law’.
Para.10 – ‘I agree with the Court that certain general principles emanating from the treaties on the law of armed conflict and on humanitarian law are binding, either as continuing treaty obligations or as prescriptions of customary international law’.
Para.12 – ‘even in seeking to disable the military forces of the enemy, there is a limitation upon the means that may be employed. These provisions are not directed at the protection of civilians, – other provisions serve that purpose. It is in any event absolutely prohibited to attack civilians, whether by nuclear or other weapons. Attack upon civilians does not depend for its illegality upon a prohibition against ‘superfluous injury’ or aggravating the sufferings of men already disabled.’
Para.14 – ‘A certain level of violence is necessarily permissible in the exercise of self-defence; humanitarian law attempts to contain that force … by providing a ‘balancing’ set of norms. It is thus unlawful to cause suffering and devastation which is in excess of what is required to achieve these legitimate aims. Application of this proposition requires a balancing of necessity and humanity.’
Para.20 – ‘One is inevitably led to the question of whether, if a target is legitimate and the use of a nuclear weapon is the only way of destroying that target, any need can ever be so necessary as to occasion massive collateral damage upon civilians.’
Para.24 – ‘The requirement that a weapon be capable of differentiating between military and civilian targets … flows from the basic rule that civilians may not be the target of attack … To the extent that a specific nuclear weapon would be incapable of this distinction, its use would be unlawful.’
Para.30 – ‘I share the Court’s view that it has not been persuasively explained in what circumstances it might be essential to use any such weaponry.’
Para.41 – ‘The judicial lodestar, whether in difficult questions of interpretation of humanitarian law, or in resolving claimed tensions between competing norms, must be those values that international law seeks to promote and protect. In the present case, it is the physical survival of peoples that we must constantly have in view.’
Page 1 – ‘It is my considered opinion based on the existing law and the available evidence that the use of nuclear weapons in any circumstances would be unlawful under international law.’
Page 3 – ‘The right of self-defence is inherent and fundamental to all States. It exists within and not outside or above the law.’
Page 10 – ‘In my considered opinion, the unlawfulness of the use of nuclear weapons is not predicated on the circumstances in which the use takes place, but rather on the unique and established characteristics of those weapons which under any circumstance would violate international law by their use.’
Judge Ranjeva, Madagascar.
Page 379 – ‘The law of nuclear weapons is one of the branches of international law which is inconceivable without a minimum of ethical requirements expressing the values to which the members of the international community as a whole subscribe. … On the great issues of mankind the requirements of positive law and of ethics make common cause, and nuclear weapons, because of their destructive effects, are one such issue.’
Page 384 – ‘The exercise of legitimate self-defence is subject to the rule of law.’
Page 387 – ‘the obligation of each belligerent to respect the rules of humanitarian law applicable in armed conflict is in no way limited to the case of self-defence; the obligation exists independently of the status of aggressor or victim. Furthermore, no evidence of the existence of a ‘clean nuclear weapon’ was presented to the Court, and States merely argued that there was indeed a problem of compatibility between the legality of the use of nuclear weapons and the rules of humanitarian law. In my view, these criticisms strip the exception of ‘extreme circumstances of self-defence’ of all logical and juridical foundation.’
Page 9 – ‘once it is shown that the use of a weapon could annihilate mankind, its repugnance to the conscience of the international community is not materially diminished by showing that it need not have that result in every case; it is not reasonable to expect that the conscience of the international community will, both strangely and impossibly, wait on the event to see if the result of any particular use is the destruction of the human species. The operative consideration is the risk of annihilation. That result may not ensue in all cases, but the risk that it can inheres in every case. The risk may be greater in some cases, less in others; but it is always present in sufficient measure to render the use of nuclear weapons unacceptable to the international community in all cases.’
Page 9 – ‘radiation has a high probability of transboundary penetration …. The 1907 Hague principle that the territory of a neutral State is inviolable would lose much of its meaning if in such a case it was not considered to be breached.’
Page 19 – ‘It is not possible to ascertain the humanitarian character of those principles without account of the public conscience. … the public conscience considers that the use of nuclear weapons causes suffering which is unacceptable whatever might be the military advantage derivable from such use.’
Page 21 – ‘it is accepted that the Martens Clause is a rule of customary international law. That means that it has a normative character – that it lays down some norm of State conduct. It is difficult to see what norm of State conduct it lays down if all it does is to remind States of norms of conduct which exist wholly dehors the Clause.’
Page 26 – on the issue of States which are specially affected – ‘Where what is in issue is the lawfulness of the use of a weapon which could annihilate mankind and so destroy all States, the test of which States are specially affected turns not on the ownership of the weapon, but on the consequences of its use. From this point of view, all States are equally affected, for, like the people who inhabit them, they all have an equal right to exist.’
Page 29 – ‘where the use of a particular weapon is proscribed by the ius in bello, the denial of the use of that weapon is not a denial of the right of self-defence of the attacked State: the inherent right of self-defence spoken of in Article 51 of the Charter simply does not comprehend the use of the weapon in question. The legal answer to the possible plight of the victim State is given by the principle, as enunciated by the United States Military Tribunal at Nuremberg on 19 February 1948, that “the rules of international law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation…”’
Page 30 – on the NPT not being a recognition of legality of nuclear weapons – ‘This was recognition of a fact that could not suddenly be wished away, and tolerance of that fact transitionally; it was not acquiescence in a right of use.’
Judge Schwebel, USA.
Page 1- ‘that nuclear weapons have been manufactured and deployed by States for some 50 years; that in that deployment inheres a threat of possible use.’ He goes on to explain, ‘They have threatened their use by the hard facts and inexorable implications of the possession and deployment of nuclear weapons; by a posture of readiness to launch nuclear weapons 365 days a year, 24 hours of every day; by the military plans, strategic and tactical, developed and sometimes publicly revealed by them; and, in a very few international crises, be threatening the use of nuclear weapons. In the very doctrine and practice of deterrence, the threat of the possible use of nuclear weapons inheres.’
Page 7 – ‘Large-scale ‘exchanges’ of such nuclear weaponry could destroy not only cities but countries, and render continents, perhaps the whole of the earth, uninhabitable, if not at once then through longer-range effects of nuclear fallout. It cannot be accepted that the use of nuclear weapons on a scale which would – or could – result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have profoundly pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful.’
Judge Shi Jiuyong, China.
Page 1 – talking about the ‘appreciable section of the international community referred to in para. 96 of the Opinion he says this – ‘is composed of certain nuclear-weapon States and those States that accept the protection of the “nuclear umbrella”. No doubt, these States are important and powerful members of the international community and play an important role on the stage of international politics. However, … the international community of States has a membership of over 185 States … and the structure of the international community is built on the principle of sovereign equality. Therefore, any undue emphasis on the practice of this “appreciable section” would not only be contrary to the very principle of sovereign equality of States, but would also make it more difficult to give an accurate and proper view of the existence of a customary rule on the use of the weapon.’
Judge Weeramantry, Sri Lanka.
Page 3 – ‘My considered opinion is that the use or threat of use of nuclear weapons is illegal in any circumstances whatsoever. It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. … It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.’
Page 29 – ‘One wonders whether in the light of common sense, it can be doubted that to exterminate vast numbers of the enemy population, to poison their atmosphere, to induce in them cancers, keloids and leukemias, to cause congenital defects and mental retardation in large numbers of unborn children, to devastate their territory and render their food supply unfit for human consumption – whether such acts as these can conceivably be compatible with elementary considerations of humanity.’
Page 53 – ‘all the postulates of law presuppose that they contribute to and function within the premiss of the continued existence of the community served by that law. Without the assumption of that continued existence, no rule of law and no legal system can have any claim to validity, however attractive the juristic reasoning on which it is based.’
Page 68 – in discussing whether the inherent dangers of nuclear weapons can be minimised by resort to ‘small’ or ‘clean’ or ‘low yield’ or ‘tactical’ nuclear weapons he states, ‘(i) no material has been placed before the Court demonstrating that there is in existence a nuclear weapon which does not emit radiation, does not have a deleterious effect upon the environment, and does not have adverse health effects upon this and succeeding generations. If there were indeed a weapon which does not have any of the singular qualities outlined earlier in this Opinion, it has not been explained why a conventional weapon would not be adequate for the purpose for which such a weapon is used. We can only deal with nuclear weapons as we know them. (ii) the practicality of small nuclear weapons has been contested by high military and scientific authority. (Iii) reference has been made … to the political difficulties … of keeping a response within the ambit of what has been described as a limited or minimal response. The assumption of escalation control seems unrealistic in the context of nuclear attack. (Iv) with the use of even ‘small’ or ‘tactical’ … nuclear weapons, one crosses the nuclear threshold. The state at the receiving end of such a nuclear response would not know that the response is a limited or tactical one involving a small weapon and it is not credible to posit that it will also be careful to respond in kind, i.e. with a small weapon. The door would be opened and the threshold crossed for an all-out nuclear war.’ He goes on with more arguments.
Page 71 – ‘The threat of use of a weapon which contravenes the humanitarian laws of war does not cease to contravene those laws of war merely because the overwhelming terror it inspires has the psychological effect of deterring opponents. This Court cannot endorse a pattern of security that rests upon terror … This Court is committed to uphold the rule of law, not the rule of force or terror, and the humanitarian principles of the laws of war are a vital part of the international rule of law.’
Did not find any useful quotes from the following:-
Judge Guillaume, France; Judge Oda; Judge Vereshchetin.
We have put before you evidence to show, that all three of us have a firm belief, founded upon rational factual evidence, that the present British nuclear deterrence policy and the present deployment of British nuclear warheads on Trident submarines are, not only frighteningly dangerous and immoral, but also unlawful and criminal.
We have shown you that we have tried, over very many years, all possible conventional methods to persuade the British government to protect us from a nuclear holocaust by disarming their nuclear weapons. We have seen these methods fail.
We feel that it is our responsibility, as global citizens, to take nonviolent, safe, accountable and practical action to disarm these nuclear weapons ourselves. If our Government and Judiciary are failing to prevent nuclear crime then we must try to prevent it ourselves. We believe that not only do we have a moral responsibility to try to prevent weapons of mass destruction from being deployed but also that we have a right under national and international law to take such action.
We are three ordinary women who have done the best we can to be responsible global citizens. We have done all that we could and have done it with clear consciences. We now place ourselves trustingly in your hands.
The independence of a jury has always been one of the most important safeguards of civil liberty. I therefore urge you to use your power as a free and independent jury and to find all three of us not guilty of all charges. Thank you for your patience.