Tony Davies’ defence

20th September 2001, Helensburgh District Court

I have spent most of my working life in medical schools in the UK and in Africa. As a doctor it has been my job and privilege to relieve suffering caused by illness and accidents. After hearing about the horrific suffering of so many people after the dropping of atomic bombs of Hiroshima and Nagasaki, I believe I have a duty to oppose the possibility of my country causing others to suffer in the same way, either by intention or by accident.

Since retirement I have worked for the campaign to remit the international debt of the poorest countries. I take hope from the qualified success of that campaign in obtaining promises of relief from a significant proportion of this debt. Had not large numbers of people demonstrated against this particular injustice, these promises would not have been obtained.

The situation with regard to nuclear weapons looks analogous to me. Opinion polls indicate that a large majority in Scotland, and a smaller majority in the rest of the UK, do not want us to have nuclear weapons. However, without protest, it seems very unlikely that the wish of the majority will be realized.

The first argument I raise in my defence is that deployment of Trident submarines armed with powerful nuclear weapons is illegal according to international law and therefore according to Scottish law. Secondly I argue a defence of necessity. I ask that your judgement will be based on the legal arguments, independently of policies of the UK government of the day.

I submit that deployment of Trident submarines armed with 100 kiloton nuclear warheads, is illegal according to the International Court of Justice’s Advisory Opinion on the “Legality of the Threat or Use of Nuclear Weapons,” delivered at the Hague in 1996. The British government has stated that it is pursuing a policy of nuclear deterrence; this means that possible aggressors are being threatened with attack by the UK’s nuclear weapons; the International Court declared such a threat to be “generally illegal.”

The first of the four question which Lords Prosser, Kirkwood and Penrose were asked to adjudicate on for the Lord Advocate was: “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?” In Paragraph 23 of their opinion, delivered on 30th March, they state: “A rule of customary international law is a rule of Scots law.” This removes any onus to argue this point in my defence.

At paragraph 105E, the International Court of Justice’s Opinion states that: “the threat or use of nuclear weapons would generally be contrary to the rules of international law as applicable in armed conflict, and in particular the principles and rules of humanitarian law.” I wish to comment briefly on the word “generally”, and the reference to humanitarian law.

In the same paragraph (105E), the advisory opinion of the International Court goes on to say 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;…” I submit that, even taking account of recent terrorist activity, at present there is no threat to the survival of our State – nor has there been for many years. Thus the current deployment of nuclear-armed Trident submarines is not sanctioned by international law, nor therefore by Scottish law.

At paragraph 78, the advisory opinion of the International Court considers the protection of civilian populations afforded by international humanitarian law in the conduct of wars, concluding that: “states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” The Lord Advocate’s Reference court accepted that the power of each of the nuclear weapons on the Trident submarines is very large. In fact each has 8 to 10 times the power of the bomb which destroyed 97% of the buildings in Hiroshima, and led to the deaths of some 150,000 people before the end of 1945. The use of even one Trident warhead against a military target could not avoid the killing and injuring of at least tens of thousands, or possibly hundreds of thousands, of civilians. Consequently, the use of the Trident weapons would inevitably be incompatible with international humanitarian law.

I also argue a defence of necessity. According to the Lord Advocate’s Reference ruling at paragraph 37, necessity can only be claimed if the threatened action is more or less immediate. When deployed at sea, the deterrent posture of British Trident submarines implies that they are a continuous threat to other countries. The submarines are on constant deployment. Thus, according to international law, which as the noble Lords have pointed out, is Scots law, a crime is being committed continuously – which includes the present and the immediate future.

The illegality of the threat of use of the UK’s nuclear weapons has been repeatedly drawn to the attention of senior ministers and military personnel. The response has been denial. What other recourse do we, who are attempting to uphold international law in a non violent manner, have other than to interfere with the work that goes on at Faslane – work which ultimately makes it possible for the Trident submarines to put to sea?

I don’t know whether you are a church person Madam Fiscal, but I hope you are persuaded by the view adopted at the last General Assembly of the Church of Scotland that “Trident is morally and theologically indefensible.” Please stop calling for punishment of us who, far from breaching the peace, are peaceably doing our best to ensure that international law is upheld.

I appeal to your Honour, as a Justice of the Peace, to encourage the British government to promote international peace by nuclear disarmament, which paragraph 105F of the International Court of Justice Opinion exhorts. The government committed itself to nuclear disarmament by signing the Non Proliferation Treaty in 1968. It reiterated this pledge at the Non-Proliferation Review Conference last year, joining in the consensus ’unequivocal undertaking by the nuclear weapon states to accomplish the total elimination of their nuclear arsenals.’

Please acquit me and the others with whom I have acted – not for ourselves but because what we are advocating is in the interests of humanity and of our planet.