LAR: US International Lawyer’s Comments on the LAR Opinion

16. The court is wrong. The defendants did indeed contend that the mere bona fide belief that the government’s actions were criminal negated the specific criminal intent required here;–that they acted maliciously. The defense was not just necessity. Indeed, Sheriff Gimblett made that clear in her ruling from the Bench and also in her Report. The defendants had a bona fide belief that the government’s actions were criminal and this belief negative criminal intent on their part.

18. but this is not just a defense of justification, but also absence of specific criminal intent. The court is wrong here to limit it.

19. ditto here. This is not just a case of justification or necessity, but also absence of specific criminal intent. Once again, the court misconstrued the nature of the defense. Sheriff Gimblett fully understood it, which is why she issued the directed verdict.

Question I.

23. “A Rule of customary international law is a rule of Scots law.” Great! We pulled that one off. Of course here what the court is saying makes no sense anyway. Francis Boyle convinced the Judge, not the Jury, which is why we won by directed verdict. So even if he had just testified before her without the jury present, in theory the result should have been the same: a directed verdict.

Malicious destruction.

29. Ok Questions 2,3, and 4 relate to justification, not mens rea, according to the court. But of course our defense related to mens rea, which is precisely why Gimblett directed the verdict. Here the court failed/refused to distinguish between general intent and specific intent. In the United States, “malicious” destruction requires proof beyond a reasonable doubt of malice. They basically found that malicious destruction of property is a general intent crime, thus negating the element of malice, which was charged in the indictment. I don’t see how they can do that properly. In the United States, this could not be done. Malice means more than a defendant acted knowingly, willfully, intentionally, etc. and a court just cannot read an element of the statute and an element of an indictment out of existence. Certainly I think you should consider appealing this holding.


32. Actually, in our testimony we did argue treaties and international agreements, the Nuremberg Charter for one, in addition to customary international law. So here the court has got it wrong.


35. Well again, we argued treaty and customary international law, not just CIL. So here the court is wrong. Also, necessity is really a choice of evils type of defense. One could argue that they were attempting to prevent a

public catastrophe (here nuclear war) without getting into customary international law. Indeed, in one case in the state of Colorado it was recognized that an affirmative defense of prevention of public catastrophe was separate and apart from necessity. So the choice of evil does not necessarily mean that the evil to be avoided had to violate customary international law or treaties. Once again, they could be acting to prevent a nuclear war/holocaust, which would be evil irrespective of its legality. So again, it is not necessary that a defense of necessity be founded on

customary international law. Indeed, if you look at Francis Boyle’s book you will see that in the context of a necessity defense he developed the idea of preventing of nuclear war as an evil per se. He did not argue whether it was legal or illegal.

36. This language just seems to gut the necessity defense completely. Another ground for appeal?

38. But Fletcher’s view is only his own, and was not adopted by the Model Penal Code of the American Law Institute, which serves as the basis for the codification of the defense of necessity in many jurisdictions of the United

States. Compulsion or coercion is not the same defense as necessity.

41. Duress in the States is a completely different defense from necessity. Even the House of Lords has recognized this. So the analogy to duress is inapt.

I think we can use that language in Reg. v. Martin the next time around to get our case to the jury on the necessity defense here. And we can argue that the defendants were acting to prevent a nuclear war.

45. Ok this is akin to the prevention of public catastrophe defense that we have made out over here.

48. Well up to this point the language of the opinion still seems to leave us the necessity defense–which is precisely the issue you wanted raised at the very beginning of the trial. We have been able to win these cases using the defense of necessity exclusively in the United States. So again, the language so far looks good for us on necessity. And we would argue the necessity of preventing a nuclear war, which does not even require us to get into arguments on customary international law.


56. But what is “defense” can only be determined by reference to international law. The Nuremberg Tribunal so-held and we have argued this point successfully in US cases. International law is justiciable. So the “defense” of the realm is justiciable too, and must not violate international law. And in this case, it is offense, not defense.

Trident and Danger

62. Well they accept our distinction that deployment differs from possession.

65. This is incorrect. The foundation of our defense was the Nuremberg Charter, Judgment and Principles. The Advisory Opinion would only be the icing in the cake–we did not really need it to win. The Court is avoiding Nuremberg completely. Setting up the ICJ Opinion as a straw man to be shot down.

66. The court says that the advisory opinion may be regarded “as confirmatory of the then rules of customary international law.” That is great language that we should be proud of.

The Advisory Opinion

So the Court completely avoids Nuremberg, which was the heart of our defense. So in theory we should be able to come back the next time with Nuremberg because the Court said nothing about it no matter what they said

about the ICJ Opinion.

The remainder of the comments on the LAR will reach us next week but as of now it is thought that we can win again with a combination of the necessity defense and the Nuremberg Charter, Judgement and Principles.

67. That is not the question the GA asked the Court; rather, the Court reformulated the GA’s question to suit its own purposes, to avoid the tough issue asked by the GA. The GA asked the Court to answer the question was the threat or use of nuclear weapons legal in any circumstances. The ICJ then turned it around.

71. This simply is not true. The ICJ made it quite clear that it adopted a definition of a nuclear weapon in accordance with a NATO agreement to that effect. That definition meant all of them, not just strategic nukes. Indeed, the ICJ deal with both strategic and tactical nukes in its opinion.

72. The High Court of Justiciary misinterprets these passages from the ICJ Opinion. See Francis Boyle’s Criminality of Deterrence Paper for full arguments here. Also, the HCJ refuses to distinguish the “threat” of nuclear weapons, from the actual deployment of nuclear weapons, which is what we argued here. The last sentence by the HCJ is completely ridiculous and makes no sense whatsoever.

77. Right, here the ICJ answers the question “in any circumstance’, which is the question posed to it by the General Assembly, saying that it does not have sufficient evidence to answer that question.

83. Right, but Tridents are not tacnukes, they are strategic, so they fit within what Schebel was condemning.

86. They state what the ICJ said: The threat stands on the same grounds as the use. Since Trident is a weapon of mass extermination, so is the threat to use Trident. Not one of the ICJ would have supported the threat or use of Trident, a weapon of mass extermination. It is disingenuous for the HCJ to suggest otherwise. Even Higgins pointed this out in her opinion. According to Higgins’ logic, the threat or use of Trident would be illegal.

Intervention to prevent crime

Well I think there is some authority from the Tokyo Tribunal Prosecutions.

93. UK is a party to the Hague Conventions of 1907 and the Four Geneva Conventions. There is no way Trident 2 could be used without violating them all. Hence, it is illegal to threaten to use Trident 2. And the ICJ refers to these as “intransgressible principles” of international law.

95. The laws of war also deal with the planning, preparation and conspiracy stages of war crimes. And the ICJ deal with this in the analysis of Article 2(4), which applies during peace time: If the actual use of the weapon is illegal, then the threat to use it is also illegal. And the deployment of Trident, which occurred here,is certainly preparation. The Nuremberg Charter makes this clear: planning, preparation and conspiracy are also covered by the laws of war. The HCJ here is simply wrong. Have a look at the sections dealing with planning, preparation and conspiracy in the US Army Field Manual 27-10 (1956). My guess is that the British Army Field Manual has similar language since it was taken directly from the Nuremberg Charter. Indeed, there is a Pentagon Directive that all weapons and tactics must comply with the laws of war. My guess is that the UK government has a similar directive. The HCJ is simply wrong here.

96. Actual deployment is even more than an abstract threat, this moves from threat to planning and preparation, at least.

97. The deployment of Trident 2 is tied specifically into its task by NATO–the destruction of the City of Moscow. Clearly, illegal and criminal.

98. this was not a routine Trident patrol. There was the war against Serbia and the attacks upon Iraq going on at that time. So there was a “war” that triggered the laws of war, according to the mislogic of the HCJ.

100. 15 minutes for the order is imminent enough. 15 minutes away from Armageddon.

104. that is a broad statement that customary international law has no rule justifying damage to property. in fact, if property is destroyed, only damages have to be paid. property is not given much protection by international law. When Egypt nationalized the Suez Canal, no one accepted Britain’s right to use force to take it back. etc. this is outrageous for the HCJ to suggest that even if the UK nukes were illegal, they could not be destroyed. Property is a bundle of rights protected by law. If the UK nukes are illegal, they have no protection by law and therefore are not property.

105. Again, this is outrageous for the HCJ to argue that even if the threat to use the nukes were illegal, it would constitute no justification to destroy them.

106. what is immediate and the prospects of prevention must be considered under the totality of the circumstances of the nuclear age going on for the last 55 years. so is the HCJ saying that these matters cannot be developed at trial for a jury to consider? Apparently so, but we have done this here in the United States–arguing that “imminence” and “success” must be considered in light of Nuclear Armageddon. And in any event, this is a jury question, not for the judge to remove from the jury.

108 and 109. But there was no malice here, even if the defendants acted intentionally.

111. Well here in the United States we have a common law right of crime prevention and even citizen arrest. Is this not the case in Scotland?

Of course they can say what they want about Scots law, but under international law there is authority for what they did.