Edinburgh Law Review (2000) Vol 4
Analysis
E L R Vol 4 pp 74-86
Stephen C Neff
Senior Lecturer in Law
University of Edinburgh
Britain’s Trident nuclear missile programme has long been politically controversial. In 1999, the controversy entered the Scottish courts in two cases involving “direct action” by protesters against Trident installations. Both incidents led to criminal prosecutions. In both, the defence invoked the question of the legality of the British Trident programme under international law. The case of John v Donnelly, decided by the Appeal Court of the High Court of Justiciary in July 1999, concerned a defender who cut some fencing at a Trident installation and was charged with vandalism under S 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. 1 She advanced a defence of “reasonable excuse” pursuant to the terms of the statute, on the basis of the illegality of the Trident programme under international law. The defence was rejected, with the observation that no attempt had been made actually to establish the illegality of the Trident programme under international law. The defender had relied, instead, merely on a sincere belief on her part that the programme was contrary to international law.
The second case, which took place in Greenock Sheriff Court in September – October 1999, is less accessible because it produced no written judgment. It is more interesting, though, in that the international law issues were more fully canvassed than they had been in John. The Greenock case concerned three women who, in June 1999, mounted an apparently well-planned operation against a barge moored in Loch Goil which was used in support operations for the Trident programme. They committed various forms of property damage: scoring windows with a glass cutter, smashing the contents of an electronic equipment cabinet, ripping out electrical cables, damaging a crane, smashing a computer monitor and throwing various items of office equipment into the loch. The three were charged with the common law offence of malicious mischief. Regarding the equipment thrown overboard into the loch, there was an alternate charge of theft.
In their defence, the Greenock defenders went to very great lengths to establish the illegality of the Trident programme. To that end, they produced expert witnesses who provided extensive testimony on the position of international law relating to nuclear weapons. To the surprise of many, the “international law defence” put forward in the Greenock case was accepted by Sheriff Margaret Gimblett, who then directed the jury to acquit the three defenders. The acquittals naturally attracted considerable media attention – attention which did not, however, clearly indicate what the “international law defence” actually consisted of or what the sheriffs precise legal ruling was. This discussion is intended to fill that gap.
In the absence of a written judgment in the case, the analysis will be based on a study of the official transcript of the relevant portion of the proceedings. 2 As will be explained below, the decision was in some ways less momentous than the press reports suggested. In particular, the impression may have been gathered from the press reports that the sheriff in the Greenock court ruled that the British Trident missile programme is illegal. That is not the position, as this discussion will explain.
In reality, the expression “international law defence” as used in the Greenock case is somewhat misleading. It actually refers to two rather different defences, which were not always kept clearly distinct in the proceedings. The first section of the discussion will describe these two defences with a view to establishing their basic character. The second and third sections will identify and assess the international law issues that were relevant to each defence and set out the sheriffs rulings, or lack thereof, on each. A final section will offer some brief general comments and conclusions on the case.
A. The Two “International Law Defences”
The defenders in the Greenock case made no attempt to deny the facts set out in the charges. Instead, they relied on legal defences. One of them related to mens rea: they contended that the absence of malice (or wicked intent) on their part entitled them to an acquittal. That Sheriff Gimblett ruled in their favour on this count will surprise many, since her ruling as she expressly acknowledged, was contrary to the predominant scholarly view on the point. 3 The present discussion, however, will focus on the “international law defence”, as it was termed.
The expression “international law defence” is somewhat inexact. It actually refers to two different, but overlapping, arguments. These two underlying theories will be referred to in this discussion as the claim-of-right defence and the justification defence. They resemble one another in that both may be described, at least loosely, as public interest defences. The claim-of-right defence, in essence, asserts (as the name implies) that the act in question is wholly lawful in the interest of preventing or stopping crime. The justification defence makes a somewhat less adventurous assertion: that even though the act is criminal in principle, special circumstances exist which preclude the state from prosecuting and punishing the actor.
The similarity between these two defences makes it hardly surprising that, in the Greenock trial, they were often treated together under the label “international law defence”. Nevertheless, the sheriff, when summing up the “international law defence’, carefully identified two distinct forms of it, which (it will be submitted) corresponded in substance, if not in express words, to the two defences just identified. 4 It is preferable to keep these two defences distinct because the international law issues play different roles in them, as the discussion below will explain.
The claim-of-right defence, as just noted, asserts the existence of a positive legal entitlement on the defender’s part to perform the act in question – even though the act may, on the face of it, appear to be criminal. The challenge for the defence is, accordingly, to identify the right in question and to establish its existence. This is entirely a matter of law. It is also a matter of strict liability, in the sense that, if the alleged legal entitlement does exist, then the action is lawful. If not, not. There can be no leeway for good faith, reasonable belief or the like. Questions of fact can enter in, however, if there is a question of, say, whether the defender’s specific conduct fell within the scope of the right.
Ordinarily, one looks to the relevant national legal system for any legal entitlement. The law of Scotland, however, seems fairly clearly to disallow claim-of-right defences for malicious mischief Persons must assert their rights through established channels such as the courts, rather than by forcible self-help. 5 In the Greenock case, the defenders sought to circumvent this difficulty by asserting a legal entitlement originating outside Scots law: in public international law. They contended that rights conferred by international law have the effect in Scots law of (so to speak) “trumping” the ordinary criminal law of Scotland by providing a legal basis for action that Scots law, on its own, would not permit. In this sense, the claim-of-right thesis may justly merit the title “international law defence”. For the avoidance of any confusion, however, this discussion will continue to use the term “claim-of-right defence”.
It might be tempting to regard the claim-of-right defence as a “civil disobedience” thesis. That would not be correct. The basis of the argument is that the substantive law is on the side of the activists. Far from disobeying the law, the defenders in the Greenock case were actively – very actively indeed -seeking to enforce the law, in the only way that was open to them. This defence is therefore more in the spirit of vigilantism than of civil disobedience.
The justification defence rests on the proposition that the defenders’ actions are criminal in principle but that, in the particular circumstances of the case, the Crown is precluded from inflicting the normal criminal punishment. The special circumstances typically consist of the performance of some rescue action in the face of a dire emergency. A classic illustration is the theft of a fire extinguisher to prevent the deaths of persons in a burning building. Justification is a doctrine of Scots law, although doubts may exist as to its precise ambit, as will be discussed presently. 6
For a justification defence to succeed, two key conditions must be satisfied. The first is that a qualifying emergency (as it may be termed) must exist, such as the burning building in the standard example. The second is that the remedial action taken must be reasonable under the circumstances. Since this defence has its source in Scots law itself, it is an “international law defence” only in the rather indirect sense that international law considerations were put forward in the Greenock case (as will be seen presently) to establish the existence of the qualifying emergency.
It is important to note that the justification defence comes, at least arguably, in two variants, which may be labelled the objective and subjective. The distinction between them relates to the qualifying emergency. The objective variant holds that the qualifying emergency must actually exist, as a precondition for the defence. The subjective variant would allow the defence to succeed if there is merely a belief on the defender’s part that such a qualifying emergency existed. If this subjective variant is accepted, then the question arises whether the defender’s belief must be a reasonable one, or whether it is only necessary that it be sincere.
Of these two defences, the bolder and more innovative one is unquestionably the claim-of-right defence. For one thing, it goes directly against the tenor of the Scots law of malicious mischief. In addition (and, indeed, for this very reason) it is the one in which international law plays the more central role. The justification thesis is more conservative. For one thing, it has a firm root in Scots law. Also, it does not assert that the law itself is “trumped”. It asserts only that the special facts present in a particular case can constitute a bar to the enforcement of the law.
During the proceedings in Greenock, there was sometimes some uncertainty as to which of these two “international law defences”- was under discussion at any given time. The discussion below will clarify the position by setting out what was required in the Greenock case to establish each of these two defences and, in particular, what role was played by international law issues. As will be seen, the acquittals were based on the subjective variant of the justification defence. It was, in other words, the more conservative of the two “international law defences” which, in the event, carried the day for the defence in the Greenock trial.
B. International Law and the Claim-of-Right Defence
International law issues lie at the very heart of the claim-of-right defence, in that customary international law functions as the source of the right claimed. The sheriff apparently was referring to this defence when she set out the two alternative formulations of the “international law defence”. The first, and primary formulation of this defence was stated by the sheriff to be the proposition that the three accused considered that Trident was being used illegally based on an understanding of what was international law and on advice given to them. And if they were right that the use and threat of nuclear weapons is illegal they had a right particularly given the enormity of the risks of nuclear weapons to try and do something to stop that illegality. 7
The assertion of “a right” to take action against the illegality would suggest that the claim-of-right defence is contemplated here. Similarly, the statement that “if they are right that the use and threat of nuclear weapons is illegal” would seem to indicate strict liability on a point of law, which is one of the features of this defence.
To succeed with the claim-of-right thesis, the defence in the Greenock case would need to establish three key legal propositions. The first is that the British Trident policy constitutes a violation of customary international law. The second is that rules of customary international law form part of the law of Scotland. The third is that international law – and therefore, by extension, Scots law – confers a remedy of forcible self-help on to individuals to prevent this breach of international law from continuing. Each of these three contentions merits some comment.
(1) Whether the British Trident policy violates customary international law
The defenders’ argument did not centre on the use of the Trident missiles, since there was no contention that the missiles were about to be launched in June 1999, at the time of the incident. Rather, the contention was that the possession of the Trident system by the UK violates international law, in that it constitutes a threat to use force, contrary to international law. Nevertheless, for the purpose of completeness of analysis, the law relating to the use of the Trident weapons, as well as the possession, will be discussed.
The claim that any actual use of the Trident missiles by the British government would violate international law is very plausible. The principal law involved is the body of law known as international humanitarian law, which sets out the legal constraints on the conduct of states during armed conflict. The principal treaty formulations of this law are the Hague Rules of 1907 and the four Geneva Conventions of 1949, together with their Protocols of 1977. 8 Regarding nuclear weapons specifically, the chief source of law is an advisory opinion handed down by the World Court in 1996 on the “Legality of the Threat or Use of Nuclear Weapons”. 9
It was conceded on all parts in the Greenock trial, correctly, that the ’World Court, in the 1996 advisory opinion, held that there is no rule of international law (either customary or conventional prohibiting the use of nuclear weapons per se. 10 The Court stressed. however, that nuclear weapons are covered by the general laws of war (as the U.K. government has always conceded). 11 This general body of law is based, the Court held, on two “cardinal principles”. The first is that “States must never use weapons that are incapable of distinguishing between civilian and military targets”. The second principle is that it is unlawful to use weapons that cause unnecessary suffering”. The Court characterised these two fundamental constraints as “intransgressible principles of international customary law”. 12
The effect of these basic principles is that it is difficult in practice – and perhaps even impossible – for states to use nuclear weapons lawfully. The Court confirmed this by holding that the use of nuclear weapons would “generally” be unlawful. At the same time, however, the Court carefully stopped short of holding that the use of nuclear weapons would always be unlawful. In a cautiously worded caveat, adopted only on the casting vote of the president of the Court, it was held that “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”. 13
The defence in the Greenock case was based, however, not on the use of the Trident missiles by the United Kingdom, but rather on their possession in what was alleged to be a threatening mode. It was contended that the British possession of the weapons, together with the general policy relating to their use, amounted, under international law, to an unlawful threat to use force, contrary to the UN Charter (which expressly prohibits the “threat … of force”) and also to customary international law. 14 Support for this contention came in the form of detailed expert testimony by Francis Boyle, professor of international law at the University of Illinois. The Crown objected to the admission of this expert evidence, but the sheriff overruled the objection and allowed the testimony.
International law as it relates to threats of force is in a highly underdeveloped state – and it cannot be said that the World Court did very much to advance the position in its 1996 advisory opinion. To some persons, it will seem obvious that the possession of weapons must necessarily constitute a threat to use them in at least some circumstances. Against this contention, it has been countered that the reason for possessing highly destructive nuclear weapons is not to use them but rather to prevent nuclear conflict from breaking out in the first place, by discouraging potential enemies from starting wars. On this thesis, they are intended to prevent wars rather than to conduct them. This is the rationale known as deterrence. Alternatively, it could be argued that the weapons are intended to be used solely in lawful self-defence, should the occasion arise.
The World Court was unable to come to a clear resolution of this vexed question of whether the possession of nuclear weapons in a ready-to-launch mode constitutes an unlawful threat to use force. But it offered a few intellectual crumbs. It stated, for example, that a “signalled intention” by a state to engage in an unlawful use of weapons would constitute an unlawful threat.
The notions of “threat” and “use” of force [the Court held] … 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 [UN] Charter … [N]o 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. 15
On the question of deterrence, the World Court was at its most delphic. At one point, it simply disclaimed any intention of pronouncing upon “the practice known as the ’policy of deterrence’. 16 Slightly later in the opinion, however, it did offer some opaque comments on the subject:
Some States [the Court observed] put forward the argument that possession of nuclear weapons is itself an unlawful threat to use them. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those States possessing … nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is [an unlawful] “threat” . . . depends upon whether the particular use of force envisaged 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. 17
It would seem, therefore, that a policy of deterrence does, in the eyes of the World Court, constitute, by its nature, a threat. The threat, however, is an unlawful one only if the force threatened would “necessarily violate the principles of necessity and proportionality” (emphasis added).
The position of the British government, not surprisingly, is that it has no intention of using the Trident missiles contrary to the UN Charter or to the laws of war. Baroness Chalker made a statement to this effect in the House of Lords in 1997. Obviously taking account of the World Court’s opinion, she asserted that the United Kingdom ” would only ever consider the use of nuclear weapons in self-defence and in extreme circumstances”. 18 The British government’s position therefore is that there is no “signalled intention” on its part to use the weapons in an unlawful manner.
There is certainly scope for disputing the British government’s view of this matter. Although the Trident missiles are targetable to a very great accuracy, they are extremely destructive. Each one has a yield of about one hundred kilotons, which is some seven or eight times the explosive power of the Hiroshima and Nagasaki bombs. It would therefore seem unlikely that Trident missiles could be used in such a way as to make the kind of discrimination between civilian and military targets which the “intransgressible principles of international customary law” require.
On the issue of the illegality of the British Trident policy, then, the defenders in the Greenock case would appear to have at least an arguable case, although definitive authority- is lacking. Contrary to the impression sometimes given in the mass media, the sheriff in the case did not make a finding on this momentous issue.
(2) Whether customary international law is part of the law of Scotland
Regarding this second component of the claim-of-right defence, the Greenock defenders were probably on solid ground. 19 It may be conceded that there is no authority in Scotland directly on the point. There is authority, however, in England, most notably in the 1977 Court of Appeal case Trendtex Trading Corp v Central Bank of Nigeria. 20 In that case, two of the three judges accepted the proposition that a newly emerged rule of customary international law automatically becomes a part of English law with no need for action by Parliament, even if it contradicts existing common law (i.e. the existing common law rule will be automatically superseded by the new international law rule).
Several cautionary remarks are in order here. For one thing, this “automatic incorporation” principle (as it is sometimes termed, for obvious reasons) may not be so firmly based in English law as is sometimes assumed. In fact, it has not received the clear endorsement of the House of Lords. Furthermore, the automatic incorporation principle only applies to rules of customary international law, not to rules deriving from treaties. Rules deriving solely from treaties can only become part of the United Kingdom’s internal law by action of parliament. In the present case, this consideration poses no difficulty, since the basic rules of humanitarian law are part of customary law (as the World Court confirmed in the 1996 advisory opinion). The same may safely be said of the UN Charter’s prohibition against threats of force.
Finally, it should be noted that the automatic incorporation principle does not detract from the doctrine of parliamentary supremacy. Consequently, a rule of common law, whatever its origin, must yield before a statutory provision to the contrary. In this regard, it might be well to take note of the Nuclear Explosions (Prohibition and Inspections) Act 1998 (which was not considered in the concluding legal arguments in the Greenock case). The purpose of this legislation was to enable the United Kingdom to become a party to the Comprehensive Test Ban Treaty. The legislation makes it a criminal offence for “[a]ny person” knowingly to cause “any … nuclear explosion”. 21 There is, however, a crucial exception: that the prohibition does not apply to “a nuclear weapons explosion carried out in the course of an armed conflict”. 22 (Whether an armed conflict is in progress is to be determined by the Secretary of State.)
The effect of this exception could be the subject of some debate. It might be contended that it only prevents the use of nuclear weapons from being a statutory offence under the legislation in question – with the effect that criminal liability under the common law remains possible. It might also be contended that the law should be interpreted to mean that only the lawful use of nuclear weapons in an armed conflict (if that were possible) is protected from criminal liability. All such considerations are, for the present, in the realm of speculation.
Despite these caveats, it must still be said that the best authority which we presently have indicates that customary international law is automatically incorporated into the law of England. The position could reasonably be supposed to be the same in Scotland, if only on the general thesis that the two jurisdictions are unlikely to adopt different approaches to an issue of this kind. For present purposes, the important point to note is that the sheriff did not make an express ruling on this matter (although she did state that she had “particular” regard to the endorsement of the automatic incorporation principle by an academic writer). 23 The issue, consequently, still awaits conclusive determination by the Scottish courts.
(3) Whether customary international law confers on to individuals a right of self-help against the Trident system
The third component of the claim-of-right defence is the proposition that international law does not merely set standards of conduct. It also confers remedies, including, in at least some circumstances, a remedy of forcible self-help – which in turn automatically becomes part of Scots law. This is the most striking element of the claim-of-right thesis. It is also the most difficult to sustain.
There is no credible support for the proposition that international law grants a general self-help remedy to individuals to take direct action against violations of international law. Only in certain special and extreme situations is there evidence that international law allows – and indeed even requires – individuals to act contrary to their national law. Most notably, international law requires individuals to refuse to commit crimes under international law – such as genocide, war crimes or crimes against humanity – even if they are ordered to do so by their state. The Nuremberg Trials and the ensuing Nuremberg Principles adopted by the UN provide the chief support for this proposition. 24
The defenders in the Greenock trial were not, however, in that position, since they had not been ordered to launch the Trident missiles or even to participate in their maintenance (other than, perhaps, in the remote sense of paying taxes to support the defence budget). To sustain a claim-of-right defence, it would have to be argued that international law confers on to individuals in general a right to take forcible action to stop others from committing such offences. This would be tantamount to arguing that Britain’s Trident policy is in the same legal category as genocide, crimes against humanity and war crimes – and that, by extension, British government officials involved in the Trident programme, from the prime minister on down, are international criminals subject to trial before an international panel such as the Nuremberg Tribunal or the tribunals currently dealing with events in Rwanda and the former Yugoslavia. For a British court to make such a pronouncement would be, to put it mildly very stunning news indeed. The sheriff in the Greenock case did not make such a finding.
The position therefore is somewhat curious. Although the sheriff characterised the claim-of-right formulation as the primary statement of the “international law defence”, she cannot be said to have endorsed it in her legal ruling. She made no express legal findings on any of the propositions identified above as essential to this defence. She did not expressly hold that the British Trident policy is illegal under international law, or that customary international law is part of the law of Scotland, or that international law provides a right of forcible self-help against the British Trident programme.
One final point may be noted here. If there had been a favourable ruling for the defenders on the claim-of-right defence, a question could still have arisen as to what kind of remedial action the defenders would be allowed to take. In the absence of any authority on this point, the most reasonable speculation is that the defenders would be allowed to take self-help steps that were reasonable under the prevailing circumstances. Consequently, even if the claim-of-right defence were to be accepted in principle, a question of fact could still arise as to the reasonableness of the defenders’ conduct. This question of the reasonableness of the conduct would also, and more obviously, arise in the context of the justification defence, so the discussion of this matter will take place in that context.
C. International Law and the Justification Defence
It will be recalled that two key things must be established for a justification defence to succeed. First, there must he a qualifying emergency or triggering event. Second, the remedial action that is taken must be reasonable under the circumstances. What made this an “international law defence” in the Greenock case was the contention by the defence that a violation of international law on the part of the UK constituted the qualifying emergency.
It will be recalled that there are, potentially, two variants of the justification defence, an objective and a subjective. The objective variant holds that a qualifying emergency must actually exist. The subjective variant only requires that the person reasonably or sincerely believe that an emergency is afoot. The remedial action can then be excused (i.e. be non-punishable) even if the belief proves to be erroneous. We shall look at each of these in turn.
(1) Whether a qualifying emergency was present
In the Greenock case, it was not contended that there was any emergency in the sense of an immediate threat to life or limb. (There was no contention, in particular. that the missiles were about to be launched.) Instead, the emergency was alleged to consist of criminal conduct on the part of the British government, in the form of an unlawful threat to launch the missiles. An important point of principle on the Scots law of justification is presented here: whether there is a general principle to the effect that action that would otherwise be criminal is justified if it is done to prevent or stop a crime. In English law, such a principle exists. The Criminal Law Act 1967 expressly authorises persons to “use such force as is reasonable in the circumstances in the prevention of crime …”. 25
It appears likely. however, that Scots law differs from English law on this point, in that Scots law focuses on the general circumstances of the situation rather than on the legal character of the precipitating act. The question arose in the John case, in which the High Court denied that the existing Scots case law supports a general proposition that “a lesser crime could be committed to prevent a greater one”. 26 More specifically, it held that the statutory defence (in the relevant legislation) of “reasonable excuse” could not be satisfied merely by the ongoing presence of an unlawful state of affairs. There must be “some particular and immediate stimulus” to the defender’s actions, such as a need to prevent criminals from escaping – or, in the John case, a fear that the missiles were about to be launched. 27
The John decision, however, was not dispositive of the Greenock case because it was a ruling on a statutory defence, whereas the Greenock charges were under common law. But the general reasoning of the decision offers little hope to the Greenock defenders.
Even assuming, for the sake of the argument, that the occurrence of a crime will, per se, trigger the justification defence at common law, it must be determined whether the objective or subjective view of a qualifying emergency is taken – i.e. whether (in the present case) the British Trident policy must actually be a crime, or whether it suffices that the defenders thought that it was a crime. On this issue, the objective variant of the defence amounts, in practical effect, to much the same argument as the claim-of-right defence. So there is no need to repeat the analysis here.
What does require consideration here is whether the subjective variant of the defence is allowed in Scots law. Here too, the High Court decision in John offers some indication (though not a conclusive answer). It held that the defender’s “sincere belief in the illegality of nuclear weapons and her anxiety at their potentially appalling effects” did not amount to a “reasonable excuse’ within the meaning of the statute in question.” 28
’The Greenock case offered an opportunity to test the validity of the subjective form of the justification defence under common law. That this issue was at stake is suggested by the sheriff’s formulation of the alternate version of what she called the “international law defence”. (the first, and primary, formulation. it will be recalled, was the claim-of-right one.) This alternate and secondary formulation, in the sheriff’s words, “was based on absolute necessity” in which “it didn’t really matter whether it [the British Trident policy] was illegal or not”. 29 This would appear to be a somewhat imprecise expression of the subjective variant of the justification defence.
It was on this point that the sheriff made her key legal finding in favour of the defenders. The three defenders, she ruled, were justified in thinking that … Britain in … [its] use and deployment of Trident … at times of great international unrest, coupled with a first strike reservation policy and in the absence of any indication from any government official then or now that such use fell into the very strict category [of extreme self-defence] suggested by the International Court of justice in their opinion then the threat or use of Trident could be construed as a threat, has indeed been construed as a threat by other states and as such is an infringement of international customary law. [Following on from that … is [the fact that] the three accused took the view that if it was illegal and given the horrendous nature of nuclear weapons … they had an obligation in terms of international law, never mind morally, to do the little they could to stop the … deployment and use of nuclear weapons in a situation which could be construed as a threat. 30
This would appear to be an endorsement of the subjective variant of the justification defence. since the focus was on the defenders’ “opinion” about the illegality of the British Trident policy. Further remarks that the sheriff made after the finalisation of the acquittals by the jury reinforce this impression. She stated that “Courts do not normally allow a crime to be committed to prevent other crimes except in very special circumstances. There were such circumstances in this particular case”. 31 It may also be noted that one of the defence counsel expressly characterised the sheriffs ruling, without contradiction, as “a sort of justification argument”. 32
The sheriff then went on to state that, as a consequence of her ruling that the defenders “were justified in … their … international law defence”, it was incumbent upon the Crown to rebut the defence. 33 “In other words, the Crown must prove, beyond a reasonable doubt, either that the defenders did not actually believe that the Trident policy was criminal under international law, or perhaps that their belief to that effect was not a reasonable one. (It was never quite clear whether, on the sheriffs ruling, reasonableness is required for this defence, or only sincerity). The Crown’s failure to make any attempt in this direction meant that it had failed to prove its case and that the defenders were accordingly entitled to an acquittal.
(2) Whether the remedial action taken was reasonable
It seems that the trial need not have ended at that point. The Crown might have gone on to contend that the remedial action taken by the defenders was not reasonable under the circumstances. The Crown did raise this point in the course of its legal arguments, but the matter was not put to the jury. The Crown contended that the action of the defenders was not, in reality, directed towards the disabling of the Trident system. The damage done, instead, was connected only to very ancillary aspects of the Trident programme, such as research activities. The action, therefore, could not, in the Crown’s submission, be reasonably viewed as a bona fide means of dealing with the emergency at hand. 34 It was a violent political protest rather than a serious attempt to stop a crime from occurring (or continuing).
Although the point did not go to the jury, it might be of interest to take note of a similar American case in which the matter was considered. This was a federal court decision in 1972, involving a protest against the Vietnam War. 35 The defendant went to his local draft board (in San Jose, California) armed with a container of petrol, with a view to starting a fire and destroying records. The purpose was, in his view, to impede the United States from committing war crimes in Vietnam. He was apprehended before actually setting the intended fire. The court accepted that it is a defence to an otherwise criminal act that the deed was committed “in exigent circumstances” such as self-defence, the defence of property or of other persons, or the averting of a public disaster or crime. The court ruled, however, that it was also necessary that the defendant act “reasonably”. To meet this test, “a direct causal relationship [must] be reasonably anticipated to exist between the defendant’s action and the avoidance of [the] harm” which he was seeking to prevent. 36 In the particular case, the contemplated action was held to be too remote from the emergency. The burning of draft-board records could have no more than a negligible effect on the commission of war crimes in Vietnam. In other words, the action was intended to be, in reality, a dramatic protest rather than a genuine attempt to stop the commission of crimes. How the jury in the Greenock case might have treated this issue cannot be determined.
D. Some Final Comments
It would appear that there was constant confusion throughout the trial as to whether the “international law defence” being offered referred to the claim-of-right thesis or to the justification defence. As noted above, the claim-of-right defence is the one that has a greater claim to the label “international law defence” than the justification one. But the “international law defence” which was accepted in the event was justification rather than claim of right. This is apparent, negatively, from the lack of any express holdings by the sheriff on any of the legal points necessary to establish the claim-of-right defence and, positively, from the findings of law that she pronounced from the bench on the “international law defence”.
If this conclusion is correct, then the extensive expert testimony on international law as it relates to nuclear weapons must have been of, at best, indirect value, since the crucial question for the defence was the defenders’ state of mind rather than the objective legal position. In fact, it seems likely that both the prosecution and the defence were thinking largely in terms of the claim-of-right thesis rather than the justification defence. This would be understandable, since a successful claim-of-right defence (or the objective variant of the justification defence) would have entailed the striking conclusion that the British Trident missile policy is unlawful under international law. But the trial produced, in the event, no such finding.
This conclusion will inevitably be a disappointment to anti-Trident crusaders anxious for headlines to the effect that “British court declares Trident illegal”. Strictly speaking, the court did not even rule definitively that the defenders belief that Trident was illegal entitled them to an acquittal. It only ruled that they had successfully raised that issue and that their conviction was precluded by the fact that the Crown failed to produce any evidence in rebuttal. This extremely limited character of the sheriff’s ruling is evident from her reaction to one of the defence counsel’s statement that she had ruled “that the accused in terms of international law were justified in their actions”. The sheriff immediately corrected counsel by pointing out that her actual ruling was slightly different: that the defendants’ action “seemed to be justified in that their reasonableness was not rebutted”. 37
The effect, then, is that very little of general value really emerged from the proceedings in Greenock. We are none the wiser as to any of the legal propositions which are necessary to establish the claim-of-right defence. Perhaps the most valuable development was the holding, if only an implicit one, that the subjective variant of the justification defence is valid in Scots law, at least in prosecutions for malicious mischief. Even this conclusion, though, is best regarded as provisional for the time being, since it is out of line with the corresponding statutory defence in the 1995 Act.
Clarification of some of the issues inspired by the Greenock trial may be forthcoming from higher courts. A Lord Advocate’s reference is, at the time of writing, in the course of preparation. There may also be further “assistance” from activists inspired by the acquittals in the Greenock trial. The sheriff in the case issued an express general warning from the bench that anyone who is minded to imitate the Greenock defenders should exercise great care. In light of the number of issues that still await definitive determination in this area, that is sound advice.
Stephen C Neff
Senior Lecturer in Law
University of Edinburgh (The author gratefully acknowledges the assistance of Dr Sinwna Stirling in the preparation of this article.)
Notes: 1 1999 SCCR 802 (henceforth John). 2 The proceedings covered by the transcripts were those of 19-21 Oct 1999, when the final legal arguments in the case took place. Henceforth cited as Transcript. 3 Transcript at 152; and G H Cordon, The Criminal Law of Scotland, 2nd edn (1978) 712 (henceforth Gordon. Criminal Law). 4 Transcript at 143-144. 5 Gordon, Criminal Law, at 712-714. 6 See generally ibid, at 420-429. 7 Transcript at 143. 8 For a collection of documents on the various aspects of international humanitarian law, see A Roberts and R Guelff (eds), Documents on the Law of War. 2nd edn (1989). 9 Legality of the Threat or Use of Nuclear Weapons. 1996 ICJ Rep 227 (henceforth ICJ Opinion). For a thorough analysis of all aspects of the opinion. see L B de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (1999). 10 ICJ Opinion at paras 68-74. 11 Ibid, para 86. 12 Ibid, para -9. 13 Ibid, para 105(E). 14 The UN Charter, 2(4) expressly forbids the “threat or use of force”.It is widely agreed that this prohibition is part of customary international law as well. 15 ICJ Opinion at para 47. 16 Ibid, para 67. 17 Ibid. para 48. 18 HL, 11 Feb 1997: (1997) 68 British Year Book of International Law 639. 19 See Mortensen v Peters (1906) 8 F (J) 93. 20 [I977] QB.529. 21 Section 1(1). 22 Section 1(2). 23 Transcript at 150 24 For the text of the Nurernberg Principles, see R A Falk, G Kolko and R J Lifton (eds). Crimes of War, A Legal. Political-Documentary, and Psychological Inquiry into the Responsibility of Leaders, Citizens and Soldiers for Criminal Acts in Wars (1971) 107-108 25 Section 3(1). 26 John at 804. 27 Ibid, at 805. See, for example. MacDougal v Ho 1985 SCCR 199. 28 John at 805. 29 Transcript at 143-144. 30 Ibid, at 150-151. 31 Ibid, at 176 32 Ibid, at 158. 33 Ibid. at 151-132. 34 Ibid, at 167. 35 US v Simpson 460 F 2d 515 (9th Cir 1972). 36 Ibid, at 518 37 Transcript at 168.