John Mayer is the Advocate for Ulla Roder. These notes are answering Question 2 from the Lord Advocate’s Reference. In total four questions were asked of the High Court.
Question 2:
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 (i) possession of nuclear weapons, its action in (ii) placing such weapons at locations within Scotland or (iii) its policies in relation to such weapons?
(i) No such thing as ‘mere possession’ of a fleet of Trident 2 Nuclear Submarines armed with 48 100 Kton live targeted Delta 5 thermonuclear warheads.
(ii) Placing is ‘deployment’
(iii) Deployment is and has been for purposes of ‘threat’
The Crown’s central proposition is ‘Threat or use of nuclear weapons is not prohibited by international law. Quite the contrary in fact. There are circumstances where nuclear weapons could be threatened or used.’ My submission is that proposition is wrong because two authoritative sources of customary international law, and thus Scots law, say so:
ICJ Dispositif – 105 A-F – Spectrum ‘mere possession — M.A.D.’
Nuremberg Principles.
Trident fits into the category of weapons which it is illegal to ‘threaten’ or ‘use’ – Scotland Act Schedule 5 Part 11 – Specific Reservations – Head L, Sub Head L3 Control of Weapons.
The status and function of the ICJ Opinion:
The ICJ Opinion did not create new legal rights. It was declaratory in nature and focused upon the legality of using or threatening to use nuclear weapons. The Court was dealing with nuclear weapons in general, not Trident in particular. It unanimously declared that to threaten or use indiscriminate nuclear weapons is illegal when the very existence of the actor’s State is not in danger. The Judgement of the Court may, to that extent, be a Rule of Customary International Law.
When the ICJ AO is read with Article V1 of the Nuremberg Principles it is clear that the nature of the illegality is ‘Criminal’. The ‘nomen iuris’ is ‘Crime Against Humanity’.
[see particularly at para 20 where ‘Nuclear States’ accepted that their actions were limited by customary humanitarian law, para 78 on ‘indiscriminate’ and ‘threat’, para 79 on ‘intransgressible humanitarian law’, para 85 which states ‘…there can be no doubt as to the applicability of humanitarian law to nuclear weapons] [and the Dispositif] Status of IMT – Highest Court – Prof Judges and Counsel – Sir Hartley Shawcross etc.
Question 2 can be answered in the affirmative even if the ICJ Advisory Opinion did not exist: because firstly a legal right of Intervention based in Customary International Law to prevent Crimes Against Humanity, such as arise from the deployment of Trident, was confirmed inter-alios by the British Government [who formed the IMT] upon individuals decades before the ICJ Opinion. Secondly, the Scots Law right based in Necessity had existed for centuries before the ICJ Opinion. [it is only of academic interest whether such rights existed before the IMT – certainly since the IMT they have existed and are extant]
The legal right to prevent Crime Against Humanity:
The arising of a legal right resolves the dilemma between the problems of acting when there is no more ‘I’ ‘One’ can do.
Nowhere did the International Military Tribunal [IMT] at Nuremberg expressly create or confer any new legal rights to prevent Crimes Against Humanity upon either individuals or States. However, certain language within the Judgement strongly suggests that the Court intended to do just that. The IMT was principally trying several accused but in doing so dealt with the creation of Crimes Against Humanity in the sense that these were written down and adopted into customary international law by the International Law Commission in 1950.
The Judgement of the IMT said [in the Law of the Charter which is non-paginated: see the section immediately after dealing with Article 228 of the Treaty of Versailles], in the context of punishing individuals who order or participate in such Crimes, “individuals have [From where? Just now?] international duties which transcend the national obligations of obedience imposed by the State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.” That passage destroys the Defence of Superior Orders and applies to military and civilian personnel who commit Crime Against Humanity.
The nature of the duties:
The Court is silent but there seems to be two possible meanings:
duty ‘to do nothing to assist’ ie take a neutral stance: NO. ‘Intnl duties’ implies vibrancy
‘individuals [Court does not distinguish between military and civilian] have international duties [therefor very wide ranging] which transcend the national obligations of obedience…’ implies a positive duty owed by the individual to their own and other nations to take action to prevent Crimes Against Humanity. Such crimes are committed by individuals and only individuals can take preventative action.
– That passage of the Judgement is part of customary international law and can properly be read as conferring or confirming a legal right in order to perform the duty. This Court therefor does not require to ‘legislate’ the rule into existence.
The individual may also look to the domestic law for her remedy ie acting of Necessity and thus legally.
What the ICJ Opinion and the Nuremberg Principles together do is provide a modern starting point for the basis in reasonableness which the court demands before upholding a defence of acting wilfully but not maliciously.
In the instant case, an ongoing Crime Against Humanity by the British Government having been identified, the legal right of Intervention arose and was exercised of Necessity when all conventional legal remedies had been exhausted.
It follows that, from either perspective [CIL or Necessity], the legal right to Intervention only arises after proper identification of the Crime Against Humanity – not just a vague notion.
The three steps to Intervention are:
Identification [NB Stop here when exercising the legal right under CIL conferred at Nuremberg]
Complaint to the competent authorities (ie those who are in positions of power and ‘international duty’ to desist; not, say, a passing constable in the street) and
Refusal by those authorities to desist from committing the crime.
The Exercise of establishing one’s right under CIL and the domestic law of Necessity:
The first question is: ‘What is a Crime Against Humanity’?
– Definition to be found inter-alia in the formulation by the International Law Commission of ‘The Crimes’ based verbatim upon the Nuremberg Principles at Art V1.
Nowadays we think of Ecocide as such a Crime – see ICJ paras 94-95 – requirement of up-to-date ruling by ECJ on threat to the environment posed by Trident patrolling EC waters
NB From a philosophical point of view, nothing fundamental happened at Nuremberg. Certainly, the events with which the Court was concerned were a supreme example of why individuals ought to have intervened but did not. [Pastor Martin Neimuller – The SS came for the Gypsies. I wasn’t a Gypsy, so I did nothing etc] c/f The legal right to intervene in extremis ie of Necessity, has been part of Scots Law for centuries.
However, from a legal point of view the International Military Tribunal took the opportunity to set out certain legal fundamentals, namely The Crimes Against Humanity and co-relative rights in individuals to prevent these. However, Scots law, like all civilised systems of jurisprudence, already had such a set of rights.
The second question is ‘Is such a Crime Against Humanity being committed?’ This question is pivotal to the Respondents’ whole thesis because if the answer is ‘no’ then the argument based on legal rights comes to a halt.
Examine,
which crime – equiparation of deterrence by deployment of Trident with threat – see C (1) infra,
by whom,
by what means,
when (periodic or constant) Crown accepted danger could be ‘constant’
to what extent
An answer in the affirmative is therefor not in the abstract but real.
The third question is ‘at what stage does the citizens’ legal right of Intervention arise?
NB there is a crucial distinction between Citizen Intervention and Civil Disobedience, [Fr. Action Direct] which is usually illegal. The underlying philosophy being that Intervention is for a general, civilising purpose whereas disobedience is for personal purposes.
NB Rights must be vested in citizens as it would be futile to have created such a monumental legal structure as Crimes Against Humanity but (i) leave individuals devoid of legal rights to prevent these and (ii) fail to hold anyone accountable for such Crimes. Two possible answers arise.
The first based in CIL, the second based in Necessity.
The CIL approach: This is the imperative approach which demands that not a moment be wasted. The moment a Crime Against Humanity is identified then the identifying citizen has the right to prevent the Crime. The Necessity approach: Here, depending on the circumstances, the legal right only arises when (i) there is no time to seek the assistance of the authorities or (ii) the assistance of the authorities has been sought and all legal alternatives have been exhausted. The Caroline Case (29 British Foreign State Papers 1841 pages 1137-1138): “show a necessity of self defence [intervention], leaving no choice of means and no moment for deliberation”
The fourth question is ‘what is the nature of the legal right arising?’
The answer in both CIL and Necessity is ‘if possible, to act non-violently, timeously and accountably to bring an end to the danger’ – ie do ‘What one can, When one can’ – the approach taken by certain American Appellate Courts.
The fifth question is ‘armed with either of his legal rights, to what extent can the citizen intervene?’
The answer is ‘proportionately’.
The sixth question is ‘by intervening to the extent of damaging the property of another, has the actor himself committed a crime?’
The answer is No. If she has the background of (i) express legal right or (ii) reasonableness and does not go to ‘cruel excess’ in dealing with person or property then she has simply done what she intended to do, namely alleviate or remove the danger. She therefor has no guilty mind [mens rea]. In these circumstances neither is there a wrongful act [actus reus] as the acts done in alleviation or removal of danger are rightful acts. She acts wilfully but not maliciously. [Query whether ‘strict liability’ arising from statutes is the correct legal approach in such circumstances – no ‘excuse’ or ‘justification’ required as actor has done nothing wrong and should not be charged with crime let alone convicted of it – Palozzo case]
The materials:
A. Where does one find the law defining a Crime Against Humanity?
Groundswell ie in the minds of all people who know right from wrong – Eg ‘Ethnic Cleansing’ / Slavery / Torture etc – see Lord Murray.
The Black Letter law:
Nuremberg Principles
- – especially ‘Crimes’ under Art 6,
IMT
- Judgement: The Law of the Charter
UN Resolution 95(1)
- –
- Adoption of the Nuremberg Charter as International Law by the UN
International Law Commission in 1950
- – Report of the International Law Commission Covering its Second Session, 5
th
- June – 29
th
- July 1950, United Nations Document A/1316; Yearbook of the International Law Commission 1950, Vol 2 pp374 – 380,
- Recent approval of the Nuremberg Principles as Customary International Law in Regina v Bow St Mags ex Parte
Pinoche
- Ugarte [1999] 2 W.L.R. (HL) per Lord Browne-Wilkinson et al.
Santa Clara Law Review
- Article re Q4 supra – ensuring that the Berrigan case is properly explained [correct Moynihan QC – Defendants convicted but won on appeal and prosecutor’s further appeal refused]
- For completeness see:
Operation Dismantle Inc et al. v The Queen
- et al. 18 D.L.R. (4
th
- ) 481 – decision of Canadian Supreme Court.
B. Demonstrate how the State cannot claim immunity from suit by arguing (i) that deployment of the Trident 2 fleet is an ‘act of policy’ performed in the course of its relation with other states and (ii) therefor ‘an exercise of sovereign power’ and thus (iii) make an assertion of lawful authority for taking such action. No government can confer lawful authority upon itself for committing a crime; particularly a Crime Against Humanity – Nazi law / President Nixon et al.
see:
Intransgressible Laws of Humanity. – when the ICJ said ‘never’ it meant ‘never’ – anything less leaves open the prospect of Mutually Assured Destruction [MAD]
Diminution of UK Parliamentary Sovereignty: PS supreme in Mortensen v Peters 1906 8F.(J) 93 ., 14 SLT 227, but not since European Court of Justice, European Court of Human Rights, World Trade Organisation Agreements, G8 Trade Agreements etc. UK now legally bound to be a co-operative, neighbourly State.
Attorney General v Nissan 1969 1All ER [House of Lords] 629
Constitutional Law by Prof J.D.B. Mitchell 2nd Edn p172-174 on ‘Prerogative’ – Green Flags at ‘bb’
Constitutional and Administrative Law by Profs Wade & Bradley 10th Edn Pursuer 316-7 on ‘act of state’
De Smith Woolf & Jowell’s Principles of Judicial Review, 5th Abridged Edn para 5-037 – 5-046. ‘Review of Prerogative Powers’ – Distinction between political decision to defend the realm and the way that is done. Former is not justiciable, latter is.
C. Demonstrate from the terms of Art V1 Nuremberg Charter that UK Govt ‘Policy of Deterrence’ is a Crime Against Humanity:
Q: At what stage can this ‘Policy of Deterrence’ be equiparated with a threat and thus Crime? – See ICJ paras 47-48 for context
A: When there is language used by those in power which tends to indicate that ‘threat’ is what is meant – the language of threat –
Commander Jeffrey Tall, Cpt HMS Repulse, said in 1995 on BBC television “There is no doubt that when we went to sea we went to war“.
Strategic Defence Review 1998 Cmnd Paper ‘Credible Deterrent’.
Malcolm Rifkind – Defence Minister – Speech in Kings College London 16th November 1993 at Para 25 ‘Would the threat be understood in the deterrent way in which it was intended…’
Secretary of State for Defence, George Robertson – Hansard, 6th Series Vol 315 8th July 1998 – in the context of spending policy on Trident ‘…no one should mess with us…’
The nature of the crime – (i) Planning, Preparing etc for indiscriminate wanton destruction of civilian population in towns cities and villages, (ii) it’s extent [apparently worldwide – Strategic Defence Review places no limits on the policy] (iii) how those actions of the British government place people and the environment in ‘constant danger’ – Trident is a ‘first-strike aggressive weapon’ the evidence was that it is constantly on patrol – not disputed. Prof Rogers p10 Indiscriminate destruction is inhumane and thus struck at by:
ICJ AO Paras 78 and 79,
Statute of the International Criminal Court Articles 5 (b) 2 (i) and 8 (b) [not yet in force but strong indicator of international intention],
Indiscriminacy also breaches the law of ‘Proportionality’ at ICJ AO para 29 and 30.
see:
the evidence of Professor Francis Anthony Boyle, Professor Paul Rogers, Rebecca Johnston, United Nations Permanent Observer and Judge Ulf Panzer (Panzer not transcribed) and, importantly, Lord Murray’s Article.
D. On the basis of the above facts;
Build up Scottish Criminal Law on the principle of Civil Intervention in times of Necessity from Hume on Crimes [times of great civil commotion] via Grieve v Macleod 1967 SLT 70., Earnshaw v HMA 1982 SLT 179., MacDougal v Ho 1985 SCCR 199., McClory v Owen-Thomas 1990 SLT 323., Murray v O’Brian 1994 SLT 1051., Duncan v Normand 1995 SLT 629., to Moss v Howdle 1997 SLT 782 [although ‘Danger invites rescue just as much in Scotland as it does in New York’ and ‘Scots Law has never been so mean spirited as to confine the defence to oneself’ per Lord Rodger – Submit that Scots criminal law has only developed to the extent necessary to deal with drunk drivers and irate shopkeepers – so in this context there is a requirement to examine the scope of ‘Companionship’] The scope of Companionship: The context of Question 2 dictates that the Court ought not to bind itself to the ‘Atkinian’ approach.
If :
In Scotland it was once mandatory, under penalty of law, to intervene in order to save vulnerable people – Cain Adomnain S35. Nowadays it still is lawful for citizen A to intervene to the point of destruction of B’s property in order to save citizen C who is in imminent or constant danger [‘Danger invites Rescue’ see Hume, Crimes (3rd ed), i, 52 and 218 and Moss v Howdle per Lord Rodger :-
see also English Law
Criminal Law Act 1967 S3
What Glanville Williams’ textbook of Criminal Law has to say on S3
R v Howe per Ld Chancellor Hailsham].,
and the principle extends to, say,
an elderly couple about to be ‘mugged’., and to
a classroom full of schoolchildren at the hands of a gunman.,and to
a theatre full of people from a fire-raiser., and to
a football stadium full of people from a bomber., and to
a town full of people from a terrorist on an aircraft
Then it follows that it must also extend to a wider geographical area full of people from a reckless indifference by their government to the consequences of a nuclear weapons strike or accident.
The last straw for the UK Govt’s policy of deploying a fleet of First-Strike Nuclear Submarines armed to the gunwales with thousands of tons of live, targeted ThermoNuclear Warheads to the point of threatening other nations.
Does Scots Law fall short of providing a legal right to intervene in the way envisaged by the Lord Advocate’s question? No.
Why not? Because (i) her legal right in CIL is specifically designed to meet that very situation and, (ii) in any event, there are no ‘special areas of life’ into which the citizen may not venture in times of Necessity.
Conclusion:
If the Nuremberg Principles are good enough for Governments to prosecute with then they are good enough for citizens to defend with.
Can one point objectively to the legal right of intervention based in the ‘rule of Customary International Law’ envisaged in Q2. Yes.
The answer to the Lord Advocate’s question is therefor Yes.