LORD ADVOCATE’S REFERENCE
HIGH COURT OF JUSTICIARY SKELETON ANSWERS
for ANGIE ZELTER
the petition of
THE RIGHT HONOURABLE, THE LORD HARDIE
Her Majesty’s Advocate Petitioner
in terms of
Section 123 of the Criminal Procedure (Scotland) Act 1995
Admitted that the evidence established that certain acts were carried out by the respondent in relation to nuclear weapons and Trident in particular.
Quoad ultra denied.
Explained and averred that the respondent’s sole intention and motivation were to resist and to seek to prevent the criminal threat or use of nuclear weapons in contravention of international law as understood by her in terms of the International Court of Justice’s ruling of 8 July 1996. Accordingly the respondent’s said acts involved no criminal intent. There was evidence to this effect before the Court which the Sheriff was entitled to accept.
The respondent’s position was and is that the threat or use of the nuclear warheads on the UK Trident weapon system is criminal at international law and that the U.K.’s reliance on Trident in its military posture amounts to a criminal conspiracy (along with other allied states) to carry out future crimes against humanity in contravention of international humanitarian law.
So far no court of law has upheld the respondent’s view because no court has been tasked to rule on this particular issue. But it is an issue of current controversy among international lawyers of repute, some of whom would support the respondent’s view. Further, in its nuclear weapons advisory opinion of 1996 the ICJ in a majority decision found itself unable to assert that any particular threat or use of nuclear weapons would be able to comply with all the requirements of international humanitarian law. In these circumstances it can hardly be said that the respondent’s view is one which no reasonable person could reasonably maintain.
The genuineness and sincerity of the respondent’s convictions about nuclear weapons were not challenged in the Greenock case and were accepted by the Sheriff.
The respondent’s legal stance can be characterised to the effect that the actions which led to the charges were, in her view, nothing less than an exercise of her inherent right of self-defence as an individual member of humanity against a continuing criminal conspiracy to contravene international humanitarian law (even it only in extremis). Thus the criminal intent necessary for conviction on any of the charges was wanting.
Admitted that the evidence of Professor Francis Boyle was tendered to the Court on behalf of the respondent as an expert on public international law who had studied the international Court of Justice’s ruling of 8 July 1996 and gave an expert opinion on its interpretation and application in international customary law. Admitted that the said Professor Paul Rogers was also a witness in the case as was the said Rebecca Johnson. Admitted that the Procurator Fiscal objected to the evidence of Professor Boyle. Admitted that the Sheriff repelled the objection and allowed his evidence to be led. Admitted that the said ruling of the International Court of Justice was referred to.
Quoad ultra denied.
Explained and averred that despite the Sheriff’s said ruling the Procurator Fiscal did not lead an expert international law witness to counter the evidence of Professor Boyle that, in his opinion, the threat or use of Trident would contravene international law, that British nuclear deterrence policy was criminal and that the deployment of British Trident submarines was criminal. Explained and averred that Professor Paul Rogers tendered evidence to the Court on the specifications and contents of the present British nuclear arsenal, contents of current British Defence Policy, the likely and foreseeable consequences of use of a 100 kt nuclear warhead and the ever-present danger of nuclear accident. Explained and averred that Rebecca Johnson tendered evidence to the Court on the Non-Proliferation Treaty and the threat perceived by many non-nuclear weapon states of the current British deployment of nuclear weapons, especially on June 8th, 1999. Explained and averred that Professor Jack Boag tendered evidence to the Court on the meaning of imminence and that Judge Ulf Panzer tendered evidence on the efficacy of civil resistance in nuclear disarmament in Germany. Explained and averred that not only the said ruling of the International Court of Justice was referred to but that also the contents of the international laws themselves were referred to directly and extensively.
Admitted that it was submitted by the respondent that the Sheriff should direct the jury to acquit her.
Quoad ultra denied.
Explained and averred that the Sheriff summarised the respondent’s submission in the following manner:- ‘The defence in this case for all three accused is based on two matters, the second being an esto case, that is if you don’t agree with me on the first ground of defence, go on to the next one.
The first is that the three accused considered that Trident was being used illegally based on an understanding of what international law was, and on advice given to them. And if they were right that the use and threat of nuclear weapons is illegal and, as I understand from Ms Zelter, they do not say that possession of such weapons is illegal but that the use and threat is illegal, then they had a right, particularly given the enormity of the risks of nuclear weapons, to try and do something to stop that illegality.
The esto defence was based on absolute necessity; and, as Ms Zelter put it, in her view it didn’t really matter whether what they did was legal or not, the necessity was still there…
So in the absence of anything other than the opinion of the ICJ, which Court considered all the relative law referred to by counsel and Ms Zelter, having regard to what was said in the article by Ronald King Murray already referred to, and in particular that part relating to treaties and conventions which concludes with the words:
“These then are the principles on which the lawfulness of the proposed use of a particular weapon is to be assessed. It is to be noted that in so far as they consist of international customary law they are part of the domestic law of this country”
and having listened to the evidence of Professor Boyle and taken into account all the evidence relating to facts and circumstances relating to this case from him and others, particularly those called as experts and in the absence – and this is very important – of any contradictory expert evidence from the Crown, I have to conclude that the three accused ladies in front of me, in company with many others, were justified in thinking that Great Britain in the use of Trident, does not have simple possession; the use and deployment of Trident, allied with that use and deployment 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 suggested in 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.
I think following on from this that the three accused took the view that if it was illegal, and given the horrendous nature of nuclear weapons, that 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. They were not objecting to the possession per se. It follows, I think, that if I consider that Ms Zelter, Ms Roder and Ms Moxley were justified in the first leg of their defence, namely, the international law defence, and as they had given that as their principal reason for their actions, that the Crown had a duty to rebut that defence. They have not done so and accordingly I uphold the three defence submissions to the extent that they relate to the charges of malicious and willful damage.
I agree with the comments put forward so succinctly by Mr McLaughlin after his colleague Mr Mayer had spoken concerning the word “malicious”. I am of course aware of the statement referred to in Gordon’s Criminal Law…. “No act is punishable unless it is performed with a criminal mind” and therefore no act is punishable under the law of Scotland if it is performed with no criminal intent. I have heard nothing which would make it seem to me that the accused acted with such criminal intent.’
Explained and averred that the Sheriff held that the accused had acted without the criminal intent required for the constitution of any of the crimes charged in the indictment and directed the jury to acquit the pannels of all four charges including the alternate charge of stealing. Explained and averred that there was sufficient evidence – virtually unchallenged by the prosecution – to entitle the Sheriff to hold as she did. In any event there was on the evidence ample room for reasonable doubt as to whether any criminal intent on the part of the respondent had been proved by the prosecution
In the foregoing circumstances the questions of law should be answered as follows:
Yes, if an issue of customary international law is properly raised.
An issue of customary international law being integral to the respondent’s defence and having been properly presented in the case and appropriate evidence on it tendered to the Court the first question of law should not be answered in the negative.
There are reported cases from the UK courts where international law has been in issue and expert opinion evidence has been led to prove the content of international law. It is not obvious why that should not be competent in Scottish criminal proceedings where an issue of international law arises. An expert international lawyer properly testifies to the content of international law but not to its application within domestic jurisdiction which is, of course, an issue of law for the court.
It should be noted that there was no suggestion in Mortensen v Peters that the customary international law defence was incompetent or that expert evidence on its content, had that been necessary, would not have been admitted.
In the absence of any clear legal authority on the matter in Scotland (or elsewhere in the U.K. for that matter) and whatever the technical position, a court dealing with possible application of customary international law plainly requires expert professional guidance upon it from qualified international lawyers. This is apparent from the confusion, doubt and ill-informed comments on international law that are being heard from both lawyers and magistrates in the lower District Courts.
The High Court of Justiciary should not answer this question to the effect that it is never competent to lead the evidence of an expert international lawyer as a witness in Scottish criminal proceedings as to customary international law. It would be unwise to leave the courts in a position where they are unable to get advice from experts on subjects outside their knowledge and expertise.
This question is not appropriate in the circumstances of this case and should not be answered.
This second question of law as stated is premised on the view that the first respondent’s intent in doing what she 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 her declared intent. Further, her plea of justification – in effect upheld by the Sheriff – does not depend on her 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 Court should decline to answer it.
This question is not appropriate in the circumstances of this case and should not be answered.
This third question of law 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 could 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. The court should decline to answer this question also.
This question should be answered to the effect that, depending on the particular circumstances of the case, it may or may not be a defence to a criminal charge that the alleged offence was not criminal but an attempt to prevent or bring to an end the criminal conduct of another or others.
This fourth question of law raises an 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. It would turn crucially on the particular facts and circumstances. In this sense it could hardly be categorised as a general defence. Appropriately qualified this question could be answered in the affirmative.
For the convenience of the Court and all other parties I have appended a copy of the references and cases that I will be referring to in my full submission [Appendix 1 for ACZ]
Appendix 1 for ACZ – REFERENCES
Ref.1.Interlocutor Sheet of April 4th 2000 Procedural Hearing
Ref.2.Letters from Angie Zelter to Court of 9/2/00 (2a) and 18/4/00 (2b) and Motions Before the Court on 12/9/00 (2c).
Ref.3.International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22. 28th August 1946, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950.
Ref.4.UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court,1998.
Ref.5.Greenock Defence Production – H14 – Pledge to Prevent Nuclear Crime.
Ref.6.Greenock Defence Production – H17 – Joint Statement of Zelter, Roder and Moxley, p1.
Ref.7.Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999.
Ref.8.Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000.
Ref.9.1999 UN Resolution on ‘Follow-Up to the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons’ presented by Malaysia, paras 1 and 2.
Ref.10.Letters from Angie Zelter to Lord Advocate of 18/4/00 (10a) and 22/7/00 (10b) and to the Court of 18/4/00 (2b).
Ref.11.Lord Advocate’s Reference Petition of the Rt. Honourable the Lord Hardie, Justiciary Office Lodged on 21 January 2000.
Ref.12.Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996.
Ref.13.Times Law Report, 19/5/99, International Law Report, Immunity for United Nations Expert.
Ref.14.Principles of the Nuremberg Tribunal, 1950.
Ref.15.President Judge Bedjaoui’s Declaration, Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996.
Ref.16.Charles J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000.
Ref.17.1991 NATO Strategic Concept Document, Article 38.
Ref.18.Nicholas Lyell’s November 15th 1995 Oral Statement, CR 95/34, to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996.
Ref.19.Christopher Greenwood, International Committee of the Red Cross No.316, p.65-75, January 1997.
Ref.20.R v. Ministry of Defence, ex p Walker  1 WLR 806, 812B.
Ref.21.Additional Protocol 1 of 1977 to the Geneva Conventions of 1949, Article 48.
Ref.22.Commentary of the International Committee of the Red Cross, 1987, para.1863.
Ref.23.Preparatory Commission for the International Court, PCNICC/1999/WGEC/INF2 Add.1(30 July 1999), p14.
Ref.24.Prosecutor v. Milan Martic (Rule 61 Decison), Case No. IT-95-11-1 (8 March 1996), paras.8-17.
Ref.25.UK Strategic Defence Review, Ch.2.23, July 1998.
Ref.26.”UK Defence Strategy: A Continuing Role for Nuclear Weapons?”, Malcolm Rifkind, Speech, London, November 1993.
Ref.27.Nuclear Weapons and the Law, Lord Murray, Oxford, October 15th 1998.
Ref.28.Dissenting Opinion of Vice-President Judge Schwebel, p.1, 12. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996.
Ref.29.Hansard, House of Commons Debate, February 17th 1998.
Ref.30.A-Bomb: A City tells its Story, Yoshiteru Kosakai, 1972, and Hibakusha, Nihon
Ref.31.Ryuichi Shimoda et al vs. The State, Tokyo, December 1963.
Ref.32.”Trident, Britain’s Weapon of Mass Destruction”, John Ainslie, p.1. March 1999.
Ref.33.Charter of International Military Tribunal at Nuremberg, Article 6.
Ref.34.Non Governmental Statement to be Submitted to the International Court of Justice, May 3 1995, Japan Center of World Court Project, p.25.
Ref.35.”The Next Chevaline Scandal?” Alan Simpson MP and CND, August 11th 1999.
Ref.36. Ian Soutar, UNGA 52, First Committee, UK Explanation of Vote.
Ref.37. Final Document Issued By NPT Review Conference, 20th May 2000.
Ref.38.Letter to Angie Zelter from Hazel Finch, Ministry of Defence, October 23rd 1997.
Ref.39.Ministry of Defence, UK Crown, 1981. The Law of Armed Conflict, p.38, Section 10, Service Discipline 1.
Ref.40.Indictment for Conspiracy and incitement, George Delf, 1980’s.
Ref.41.House of Commons Written Questions, 13 December 1999: Column 40W.
Ref.42.Geneva Conventions Act, 1957.
Ref.43.Geneva Conventions (Amendments) Act, 1995.
Ref.44.International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19. 26th July 1946. Taken from the Official Transcript. Published by HMSO, London, 1948.
Ref.45.M Dixon, Textbook on International Law, 3rd Edition, 1996.
Ref.46.R v. Bow Street Magistrate, Ex parte Pinochet Ugarte (No 1)  1 A.C. 61.
Ref.47.R v. Bow Street Magistrate, Ex parte Pinochet Ugarte (No 3)  1 A.C. 147.
Ref.48.Oppenheim’s International Law, Vol.1, 9th Edition, 1992, ed. Sir Robert Jennings QC and Sir Arthur Watts QC.
Ref.49.(a) Zivilzpozessordnung, Artikel 128; (b) Austrian Code, Artikel 357.
Ref.50. R.Higgins, Problems and Process, Oxford, 1994, p.213.
Ref.51. Compania Naviera Vascongado v. S.S. Cristina  A.C. 485 p.497].
Ref.52.Statute of the International Court of Justice.
Ref.53.Trendtex  1 All E.R. 881.
Ref.54.Piracy June Gentium  A.C. 586.
Ref.55.Radwan v. Radwan  3 W.L.R. 735.
Ref.56.Ian Brownlie, Principles of Public International Law, OUP, 4th edition, 1990, p.24-25.
Ref.57.American Law Institute, Restatement of the Foreign Relations Law of the United States (Third), Vol.1, 1-488, 1987.
Ref.58.Disenting Opinion of Judge Weeramantry appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996.
Ref.59.The Zyklon B Case, Hamburg, March, 1946, Trial of Bruno Tesch and Two Others.
Ref.60.International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 29th August 1946. Taken from the Official Transcript. Published by HMSO, London,1950.
Ref.61.International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 30th August 1946. Taken from the Official Transcript. Published by HMSO, London,1950.
Ref.62. Hansard H.L. Vol.233. Col.831. 2 Dec ’63.
Ref.63.Respect the Law: Dismantle Trident – an open letter to Tony Blair from global citizens of Ploughshares 2000.
Ref.64.State of Vermont v. Harold G McCann. District Court of Vermont, Unit 2, Chittenden Circuit, Docket No. 2857-7-86 CnCr, VT District Court, Jan 26 1987, Chittenden.
Ref.65.In re Yamashita, 327 US, (1945): United States v. Von Leeb, 11 Trials of War Criminals Before the Nuremberg Military Tribunals 426 et.seq. (1948).
Ref.66.Universal Declaration of Human Rights, Preambular paras 3 and 8 and Article 28.
Ref.67.International Covenant on Civil and Political Rights, Article 6(1).
Ref.68.Letter to Dennis Canavan from Colin Boyd of 2/6/00.
Ref.69.Appeals Chamber of the International Criminal Tribunal of Former Yugoslavia, 38 International legal Mat. 1518 (1999) July 15.
Ref.70. Olmstead v. United States, 277 U.S. 438, 485.
Ref.71. Corfu Channel Case, ICJ Reports 1949.
Ref.72.Steele v. United Kingdom (1999) 28 E.H.R.R. 603.
Ref 73. Judge Ranjeva’s Separate Opinion appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996.
Ref.74.Iatridis v. Greece (2000) 30 E.H.R.R. 97.