29th September 2000
IN THE HIGH COURT OF JUSTICIARY
LORD ADVOCATE’S REFERENCE
STATEMENT OF ARGUMENT
for the First Respondent
to the Petition of
THE RIGHT HONOURABLE THE LORD BOYD, Her Majesty’ Advocate
in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995
ANGELA ZELTER (First); (BODIL ULLA RODER (Second); and
ELLEN MOXLEY (Third).
Argument for 3rd Procedural Hearing
for Changing the Wording of Question 1
Question 1 asks “In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?”
A better wording for this question would be:- “In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content and interpretation of international law as it applies to the United Kingdom?” Changes made are:-
Added the word “interpretation” and deleted the word “customary”. Reasoning:-
The deletion of “customary” so that both customary international law and treaty law is understood by the term “international law”,
1. At Greenock we relied on both customary and treaty law in our defence. Within the body of law known as ‘humanitarian law’, customary international law is seldom separated out fully from treaty law. Humanitarian law is partly codified in the various Hague and Geneva treaties but customary law fills in the gaps and is the bedrock, the foundation of the law. It is only in the light of the principles and rules of customary international law that one can make sense of the conventions and treaties. Customary law is therefore not of a completely different kind but is closely linked with the conventional law. The two sources of international law overlap.
2. Two Acts of Parliament – the Geneva Conventions Act of 1957 and the Geneva Conventions (Amendments) Act of 1995 – have directly incorporated the 1949 Geneva Conventions and the 1977 Additional Protocols into UK law and we referred to these laws in our defence.
3. The Sheriff herself refers to the more general term “international law” in her Report. For instance, just to give you two examples:-
At page 3, 7th line down, she refers to our “understanding of international law as it related to the threat and use or deployment of Trident”.
At page 25, 4th line of the last paragraph, she confirms that I “outlined all the sources of international law which were considered by the International Court”. You will be aware that the ICJ considered customary international law and treaty law. [Ref.1 Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000].
4. And if you refer to my cross-examination of Professor Boyle in the transcript of Friday 1st October you will note at page 110B, when I asked, “Are there any” – the missing word is intransgressible by the way – “Are there any (intransgressible) rules of international law that must be obeyed always, whatever the circumstances?” – you will note that in the reply at D-E he mentions conventional law – i.e. “Geneva Conventions of 1949” and the “Geneva Protocol 1”. [Ref.2. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999].
The addition of the word “interpretation” so that the Question covers both the content and interpretation of international law.
1. It is quite clear from the testimony that Professor Boyle gave that he not only spoke of the content of international law but also outlined how it could be applied to Trident in particular. This was of the utmost importance because it is in the interplay of the law and the facts that Trident’s legal status becomes clear.
2. I would like to hand up these three copies of Charles Moxley’s recent publication as I shall be referring to several quotes from within it.
If you turn to page xxvi at the beginning of the book, the 4th paragraph down, he explains why the testimony of an international lawyer is so important and why we need to look further than just the content of law. He says, “the proponents and opponents of the nuclear weapons regime generally agree on the substance of the rules of law applicable to this matter. The facts are also generally open and known and ostensibly beyond reasonable dispute. Where disagreement arises, it appears to result primarily from the distortion, ostensibly for political or strategic reasons, of facts and law otherwise acknowledged, and from the refusal to accept the implications of the application of the law to the facts”.
And on page 15, 2nd paragraph, he states,
“The legal analysis hinges on very specific and detailed facts as to nuclear weapons and policy and the practices of the nuclear powers”. [Ref.3. Charles J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000].
3. Professor Boyle was able to give help with just such an analysis, which then put into context the factual expert testimony of Professor Rogers and Rebecca Johnson.
Argument for 3rd Procedural Hearing
For Changing the Wording of Question 2
Question 2 asks “Does any rule of customary international law justify a private individual in Scotland in damaging or destroying property in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?”
A better wording for this question would be:- “Does international law and/or Scots law justify an individual in Scotland in damaging or destroying property which is being used for criminal purposes, in order to prevent those criminal actions being carried out by the United Kingdom; namely the United Kingdom’s deployment, within and without Scotland, of Trident nuclear warheads and its threat to use such warheads in accordance with HM Government’s current defence policy?” Changes made are:-
Deleted the words “any rule” and “customary” and added “and/or Scots law”; deleted “private”; added after the word “property” the descriptive phrase “which is being used for criminal purposes”; deleted “in pursuit of his or her objection” and replaced it with “in order to prevent those criminal actions being carried out by the United Kingdom; namely”; and changed the ending of the question from “to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons” replacing with “the United Kingdom’s deployment, within and without Scotland, of Trident nuclear warheads and its threat to use such warheads in accordance with HM Government’s current defence policy?” Reasoning:-
The deletion of the words “rule” and “customary” and the addition of “and/or Scots law”.
1. We relied upon the principles of international law as well as the rules. In my testimony from the witness box I relied upon the “intransgressible principles of international law” as part of my argument as to the criminality of the 100-kiloton nuclear warheads on Trident. It would therefore be more accurate to delete the word “rule”.
2. Also if the word “rule” is kept in then the phrase “or prevent” would have to be added to be fair. Because while there might not be a rule justifying damage to property there might also not be a rule preventing such damage. Such emphasis on specific rules alone progresses us no further. One would not expect international humanitarian law, which relates to very general and wide-ranging principles and rules for global application, to specify how criminal actions carried out by a specific State, like the UK, can be stopped by its own citizens in Scotland. One must surely use common sense and first principles. Which is what our action was all about. We knew about plans and equipment used to threaten mass murder; we knew that at any time an accident or deliberate use of these warheads could lead to the destruction of all life on the planet; we tried, along with many others over many years to get the State and other authorities to stop the criminal activities; and then attempted to do it ourselves using reasonable, safe, and nonviolent methods to do so. And might I point out that these Reference proceedings are yet another lawful means to try to prevent the continuation of this ever present criminal danger to all life on earth.
3. We also relied upon the full body of international law, both customary and conventional and I refer you to my arguments on this matter in relation to Q1, so I do not have to repeat myself. It is therefore more accurate to delete the word “customary”.
4. Scots law should be added in for completeness. It is unlikely that any domestic law system does not have customary laws or principles such that it cannot find a justification for an individual preventing one of the “most serious crimes of concern to the international community as a whole” [Ref.4. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court,1998, Preambular para 4 and Article 5(1)] – that is – crimes against humanity and war crimes. I cannot believe that Scots law could be so deficient. I hold that there is a right in the whole of the UK for individuals to use reasonable force to prevent the commission of serious crimes and that there is also a right to act out of necessity. I used both of these defences at Greenock, as you can see from the transcript of Tuesday 19th October from page 2 to page 17, as well as the purely international defence, and so Scots law should be a part of the question.
The deletion of the word ‘private’.
1. The development of international law to apply to individuals rather than States was an integral part of our defence. We continually referred to the Nuremberg Tribunals. Unfortunately a transcript of my defence from the witness box has not been ordered by the Court but nevertheless I can refer you to the transcript from Tuesday October 19th at page 22C where I quoted Jackson at Nuremberg as saying “individuals have international duties which transcend national obligations of obedience” and also at page 21C where I explained a bit about the trial of the German industrialists in the Zyklon B case. [Ref.2. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999]. Nuremberg was about “individuals” – individuals within the military, within the state, private, professional, and many other kinds – it would be too narrow, confusing and ambiguous to discuss this question as applying to “private” individuals alone.
The addition after the word “property” of the descriptive phrase “which is being used for criminal purposes”. 1. There could be some debate about whether the term “property” can be used to describe objects that are used for unlawful purposes and certainly I object to the tone of the word conferring some kind of respectability and normality on objects which I consider as more accurately described as mass killing equipment. Perhaps a compromise could be reached with the more neutral descriptive phrase “which is being used for criminal purposes”.
The deletion of the phrase “in pursuit of his or her objection” and the replacement with “in order to prevent those criminal actions being carried out by the United Kingdom; namely”.
1. The use of the word “objection” in the question is misleading. We are not talking about objections here but our legal rights – the right to live without fear of nuclear annihilation and the right to prevent the commission of one of the most serious crimes there could be. One does not “object” to the threatened destruction of the planet – it is a matter of life or death. We are all in imminent danger. None of us know when nuclear weapons will be used – by design or accident – but we know that sooner or later they will be, if we do not stop it, and meanwhile our planet is becoming more and more contaminated with long-lasting nuclear contamination as accidents and wastes proliferate.
2. “Objection” implies a matter of opinion or a political view, a state of mind, rather than action to protect the very possibility of life. We are talking here about a fundamental and deep-rooted instinct for self-preservation – the right to life itself.
3. In the original Greenock case the Sheriff actually found in her ruling that we were “not objecting to the objection per se”. You can see this at page 151E of the transcript of Wednesday 20th October. [Ref.2. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999]. Therefore it is wrong to say the opposite in the phrasing of question 2.
4. It would be more accurate to put into the question that we were trying to prevent a terrible crime. After all that is what the evidence at Greenock shows. For instance the Sheriff, in her Report at page 135, stated, “I was not able to find that what these three women did was done with any criminal intent, but only in an attempt to prevent what they honestly believed to be a much greater crime”. Also in answer to a direct question from the PF on 13/10/99 in cross-examination I stated very clearly “I am not running a political campaign. I am trying to prevent nuclear crimes”. I presented evidence to show this and it was accepted by the Sheriff. The Sheriff reports my evidence given in cross-examination at page 32, “When asked if their aim was to influence and change government policy she replied “No”; she was trying to prevent any country in the world committing mass murder” and again at page 33 she “said that her action on 8 June was directly trying to prevent a crime.” [Ref.1 Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000].
5. The way this question is phrased at the moment is premised on the view that our intent in doing what we did amounted in law to no more than a demonstrative protest at the U.K.’s possession of nuclear weapons and its policies and actions in relation to them. This misrepresents and wholly underestimates our declared intent. Our plea of justification – in effect upheld by the Sheriff – does not depend on our objections to the policies and weapons, but on the alleged criminality of the U.K.’s nuclear weapons posture. The question is thus inept and does not advance matters.
The changing of the ending of the question from “the possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons” and replacing with “the United Kingdom’s deployment, within and without Scotland, of Trident nuclear warheads and its threat to use such warheads in accordance with HM Government’s current defence policy?”
1. I would like to emphasise here that Sheriff Gimblett accepted that we were not acting against “possession per se” but against the deployment of Trident. See her comments in her Report at page 2 where she says, “this trial was not concerned with the possession of nuclear weapons” and on page 38 where she reports on my evidence where I said what I “was talking about was the active deployment of loaded Trident submarines” and that “What was at issue in this trial was the active deployment and the moving them around in submarines that was seen as a threat.” [Ref.1 Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000]. When I was cross questioned by the Procurator Fiscal on the issue of possession and what the ICJ had said about possession I said in response, “We are not talking about pure possession, but about deployment.” I made it quite clear in my answer that the ICJ Advisory Opinion was not asked to rule on the possession of nuclear weapons but on the threat or use of nuclear weapons.
Thus the wording should be changed from “possession” to “deployment” to reflect the reality of the evidence given at Greenock.
2. The end of the question is also misleadingly put to suggest that what the UK does is simply place its weapons in some hidden corner of Scotland as some never to be used ultimate deterrent that will be so effective it will never be used. The reality is quite different and we made that clear at Greenock. The truth is that there is always at least one Trident at sea armed with tens of warheads of 100 kilotons each plus the deterrence policies and plans to use them. Trident submariners are willing and able to press the nuclear buttons and regularly practice such launches on exercises. Expert evidence was led and accepted without rebuttal on the issue of current deployment and threat to use and the rewording I suggest reflects this.
Argument for 3rd Procedural Hearing
for Omitting Question 3 Altogether
Question 3 asks “Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?”
This Queston did not arise in the Greenock Trial at all, is not appropriate and should therefore not be asked at all. If the Crown refuse to drop it then it should not be answered. Reasoning:-
1. This question misses the point entirely. Belief can be a vague, undefined feeling – a personal understanding that does not necessarily have any wider significance. Belief is an imprecise term that is not the same as “objective knowledge”. The issue in the case was not whether we “believed” Trident to be unlawful, but that we knew in FACT that it IS unlawful, and that we reasonably believed our actions would help terminate its existence. The basis of our disarmament action was, in other words, stronger than belief. It was a conviction based on fact and legal argument provided by the world’s highest judicial authority. The defence presented evidence that was not rebutted by the Crown. By using the “belief” phraseology, the Crown takes for granted that the threat or use, or even deployment, of Trident would not be illegal.
2. None of the defendants at Greenock Court relied on ‘belief’ to sustain our defence but on well reasoned argument and evidence. This is not the same as belief. As the Sheriff said on page 3 of her report, “The trial related to their understanding of international law based … on an in-depth study of international law, customary law ad bellum and in bellum … and had formed an unchallenged, sincere, unshakeable view not just of the illegality of the use of nuclear weapons … but of the … ongoing threat of use of nuclear weapons” [Ref.1 Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000].
3. The Court has not, unfortunately, ordered a full transcript of the Greenock Trial and therefore I have to rely upon a document that I handed to the Sheriff after having given evidence from it in the witness box. I wrote this document myself in prison and it provides ample evidence of the reasoned factual basis for our assertion that the actual nuclear weapons that the UK bases at Faslane are unlawful. This evidence that I gave as to the state of my knowledge was backed up by expert testimony from Professors Boyle, Rogers and Boag and from Judge Panzer and Rebecca Johnson. Perhaps if I just quote the first paragraph – this will be sufficient – as it is a document that took several hours to submit at Greenock.
Headed “The threat and use of Trident nuclear weapons is a crime in international law” it states, “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].”
[Ref.5. Paper which formed part of Angie Zelter’s evidence given from the witness box at Greenock, Tuesday 12th October, 1999]
4. This third question of law from the Lord Advocate focuses solely on an accused’s belief that actions are justified in law without regard to any wider factors including the grounds of such belief and its reasonableness in the circumstances. This oversimplification renders it inept. Mere belief that actions are justified in law might not of itself found a successful plea of justification in law. But that does not mean that there is no room for the doctrine of justification in an appropriate context in Scots law.
5. The Sheriff found as a matter of law that we had raised a reasonable doubt as to Trident being illegal and that the crown had not rebutted this. If the Crown had rebutted our arguments then the situation might have been different. If the Crown had “proved” (beyond reasonable doubt) that we were wrong in law – that Trident was in fact lawful – then maybe our beliefs might have been relevant and come into play. However, the reality is different. The question of our beliefs – as separate from our knowledge of facts – did not arise out of Greenock and thus this question should be dropped completely. Reference proceedings are presumably not just debating chambers but are meant to be referring the important points of law that arise out of the specific facts of a specific case. The question of “belief” per se did not arise.
Argument for 3rd Procedural Hearing
for Changing the Wording of Question 4
Question 4 asks “Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?”
A better wording for this question would be:- “Is it a defence to a criminal charge to show that the conduct alleged to constitute an offence was the only means available to the accused person to prevent HM Government committing one of the most serious international crimes, or that it was undertaken in the reasonable belief that it was the only available means of preventing the commission of such a crime?” Changes made are:-
Deleted the word “general”; replaced the rest of the question with “to show that the conduct alleged to constitute an offence was the only means available to the accused person to prevent HM Government committing one of the most serious international crimes, or that it was undertaken in the reasonable belief that it was the only available means of preventing the commission of such a crime?” Reasoning:-
The deletion of ‘general’.
1. The question as it stands is much too broad and vague. We never argued at Greenock that we committed an offence and had a general defence. We raised the specific defences of self-defence, necessity, justification and right to prevent serious criminal activities – they were all interwoven but nevertheless can clearly be seen. This fourth question of law raises one issue of principle – whether Scots law admits a defence to a charge that what was done was directed to preventing or ending another’s criminal actions. It can reasonably be submitted that in appropriate circumstances such a defence could and should be allowed. But it would turn crucially on the particular facts and circumstances of the case and could thus hardly be categorised as a general defence. Therefore the word general should be taken out and the question should be re-phrased to enable it to apply more specifically to the Greenock case.
The re-phrasing of the rest of the question.
1. The question is badly written in that it makes out that if we had reasonable grounds for our action it would still be an “offence”. At the very least the question should have worded it as an “alleged offence”. We were not saying that we committed an offence and had a general defence (e.g. unsound mind) but that we did not commit an offence in the first place. In the case of malicious mischief, to have committed this offence, we would have had to have had deliberate disregard for the rights of others. But we were arguing that these rights did not exist in the first place, because the whole Trident system was unlawful. This is better reflected in the changed wording of “the conduct alleged to constitute an offence”.
2. In order to make the question more relevant and to ensure that it arises out of the Greenock trial it is important to point out that “another person” actually refers to Her Majesty’s Government and Armed Forces and to reflect this in the re-phrasing of the question.
3. It is also important that it is re-iterated that the crimes we were trying to prevent were the “most serious crimes of concern to the international community as a whole” [Ref. 4. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court,1998, Preambular para 4 and Article 5(1)] – that is – crimes against humanity and war crimes. This is because the proportionality of the means used to prevent crimes is of the utmost importance.