THURSDAY, 12th OCTOBER, 2000
LORD PROSSER: Mr. Moynihan before you start I am thinking about some of the points which you may have been moving on from, questions which I think the kind of things are sort of clarification or supplementary to legal points which are sort of a matter not covered. You may be coming to them anyway, you may be coming to these points anyway in which case don’t bother responding to this but if I could raise them. They relate really to the International Court of Justice.
First of all you submit that it was persuasive authority and I see of course the general truth of that. You referred to other decisions and I think we did slightly touch on what is the nature of the advisory opinion, whether it is really a decision because where a decision of a Court will have some direct effect then one sees why a majority has to be used because one must have one answer. Where it is advice that is being sought one sees why a majority may be used in say to produce something which may be called the advice of the Court but my question really is whether we have heard enough on how one approaches it, where there is a division of opinion and particularly where there is a division of opinion upon a matter such as identifying customary international law which cross hypothecs as a matter in which there is not too much division. Does one simply look at the majority opinion or does one in effect have to look at all the opinions to see whether they persuade us that there is the requisite community view which is required for establishment for the rule of international law.
So that’s the first area that I think we needed a bit more on. Perhaps secondly, and it may tie in with this, there is often a tendency in writings on law and sometimes in judicial opinions to slight their argument as to what a law ought to be into asserting that that is what the law is because where a view as to what ought to be the law may appear to be a strongly held view and very widely held there is still a difference between what the law ought to be and what it is.
And then again slighting on do I take it that what the International Court of Justice are trying to do is to discover and not to lay down Customary international law and that that means really to discover whether there is a general opinio juris, in other words a seeking of obligation consenting to identified rule as it were pre-existing whatever may be said by the Court of Justice itself.
So they are looking to see whether there is a rule and whether it has assent in the sense opinio juris. And of course finally it seems to me that if the International Court of Justice say that they have found such a rule with the requisite opinio juris then I take it that be they right or be they wrong it is then possible that the fact that they have propounded it may thereafter attract the general assent and opinio juris even if that wasn’t there before and of course it might just become customary international law of that subsequent assent even if in a sense the Court, were they to have gone too far in ascertaining the position already.
It’s just an area, you may be coming to these, you may have passed on, it seemed better to do it now than by interrupting.
MR. MOYNIHAN: My Lord, what I will do is answer those questions directly because they are significant. Before I do that if I can indicate to your Lords what I was proposing to do and this will directly slot into that.
LORD PROSSER: Please don’t…
MR. MOYNIHAN: I am not going out of order. I do give some consideration to the best way to approach this case because in answer to my Lord Penrose yesterday I had accepted that my submission involved a combination of fact and law and that naturally gives rise to the normal chicken and egg situation, do I give evidence of fact or law.
What I am going to do is begin with an outline of an important position in both law and fact and I will read it out for convenience for all concerned. Simply to set the general scheme of my submissions I will then deal with the International Court of Justice Opinion. When hearing my submissions on that your Lords will have the outline of my factual premise, I will then look in detail at the factual matters and I leave very much to your Lords and to indeed my learned friends whether it is necessary to read the passages in the transcript as opposed to simply adding as the list of the sheets does give your Lords the pertinent passages, but that’s housekeeping.
LORD PROSSER: These are essentially in the fuller evidence.
MR. MOYNIHAN: A combination of both.
LORD PROSSER: Yes.
MR. MOYNIHAN: I add because I intend in due course to read out this document, I have copies for those who are interested if they don’t already have it.
My Lords, it would be helpful to begin my remarks by answering my Lords’ questions in so far as I can at this stage. My Lords beginning with the grandest of the questions and the most important and that is the status of the ICJ Opinion. First of all my Lords I checked simply with Brownlie, the current edition of Brownlie on public international law. While he does not discuss in detail, what he says in the advisory opinion is that it is intended to give authoritative guidance on the principles to the requesting organisation of the United Nations, in this instance the General Assembly. So it is in every sense an advisory opinion.
LORD PROSSER: You put it pretty much like that yesterday.
MR. MOYNIHAN: But it is authoritive to the guidance to the questioning body.
LORD PENROSE: Can I ask whether that leaves a question, neverthless to find itself after having had the advisory opinion in the position is not accepting it became the sense.
MR. MOYNIHAN: My Lord if I can leave that to the end. There is a reason for leaving it to the end, I don’t know the answer and there is a matter of fact I will raise with your Lords at the end.
LORD KIRKWOOD Just to follow that, emphasis is presumably given to someone who is contemplating some further action and wants to be guided before doing so.
MR. MOYNIHAN: My Lord I understand this is where I am dependent on the evidence from Professor Boyle which perhaps kind of illustrate the significance of that. I understand that one of the debates that states were engaged in and it was interfering disarmament negotiations would the nuclear States maintaining a distinction on the one hand between deterrence and threats and on the other hand gives the General Assembly concern to have guidance from the Court on the validity of that distinction. This is not directly answered in Lord Penrose’s question but I will come to that in due course. I understand because it’s not an advisory opinion that the opinion is not binding on any one particular state. It is advice given to the requesting body.
LORD PROSSER: Moreover it might not amount to what I would normally call a rule of international law, if it merely covered interpretation of some expression it might not really amount to what we call a rule or be capable of binding because the expression might not really occur in any existing rule.
MR. MOYNIHAN: I can answer that as part of your Lord’s second head because I can come to that directly, I will come to some other matters relating to the structure of the Court. Your Lords asked whether the opinion would be direct, reaching these opinions should one be cautious of the distinction between what someone says the law ought to be and what the law is.
LORD PROSSER: Yes.
MR. MOYNIHAN: Your Lords will in fact find in the dissenting opinion of Judge Schwebel that very distinction drawn.
LORD PROSSER: Yes.
MR. MOYNIHAN: And your Lords will find in the opinion of the Court the Court is at pains to say that its function is limited to what we in Scotland would call a declarator power and not any junction of law.
LORD PROSSER: That’s what I had in mind, it was that bit that I had in mind because it also seemed to me in some of the individual opinions which could be said perhaps very perceivably is rather more about what it ought to be, what one wishes it was and I don’t know that that takes you far.
MR. MOYNIHAN: Well precisely so.
LORD PROSSER: But you do accept their function is declaratory of law as it is with another real role for the Court in identifying what it ought to be.
MR. MOYNIHAN: I might answer that in two ways, first of all as a matter of generality I would not press individual experts to know the answer to that. In relation to this specific judgment I can answer it quite quickly that the Court itself said it was not going beyond that declaratory conclusion.
LORD PROSSER: So that’s about pre-existing law. Law unaffected by the conclusion about it.
MR. MOYNIHAN: That’s correct. Now my Lords there are some ancillary points that arise from that. Firstly in so far as one seeks to find the conclusion of the Court one obviously looks at the opinion of the Court.
LORD PROSSER: Yes.
MR. MOYNIHAN: Rather than the individual opinions of the Court. So far as if I may call them judges’ opinions, in fact if I can use a phrase that’s not quite accurate if I can call it the dissent which we know we are talking about the opinion of the Court. As far as the dissents are concerned I am referring to the dissent only in so far as they portray common assistance to the interpretation of the opinion.
LORD PROSSER: So far as…
MR. MOYNIHAN: By common points that assist in relation to the interpretation of the opinion of the Court and for that reason I have given your Lords some of the majority dissents and some of the minority dissents. Your Lords can discern whether there are points in common that shed light on the proper interpretation of the opinion of the Court.
LORD PROSSER: I mean you say in a sense but the fact that there are even dissenting individual opinions. What worries me here is it’s the whole nature of customary law and it may be far more interesting that there are 7 who say it’s one thing and 7 who say it’s another thing, that may in itself be much more interesting than the fact that 7 or 7½ or 8. So there is a more complex opinion that the fact that 7 or 8 think what was said. Because I find it difficult to marry the concept of their being divided to the concept of clearly accepted rules assented to by the opinion of juris of the space world.
MR. MOYNIHAN: If I can step back from the international sphere of the presenting sphere, there was one House of Lords debate about workmens’ compensation about the meaning of the word “accident”. 7 judges sat in the House of Lords and agreed that the ordinary meaning of the word should apply. 4 took one view and 3 took completely the opposite view. The conclusion is of course and the decision is that the four are the majority. A division of opinion is simply a familiar…
LORD PROSSER: That was the delineative decision on a point of law which thereafter would have to be applied. The point is one relating to advisory opinions which are only going to have persuasive authority in your own expression and it surely makes them very unpersuasive if a question is from established customary law on which the opinio juris of opinions is broadly speaking the one and you find that half the Court think not. I over-simplify, I find it difficult to see it as persuasive.
MR. MOYNIHAN: My Lord I accept as a matter of concern all what your Lord is saying, part of my difficulty is answering that in the abstract and the reason for that is this, what I am seeking to do by laying before your Lords and by using the word “dissent” is simply saying to your Lords, “No, I am speaking of an individual judge, I am conscious they are not truly dissent.” What I am trying to distil from these so-called dissents is an understanding of precisely on which point the judges differ.
LORD PROSSER: Yes.
MR. MOYNIHAN: And if we find the core area that they were in agreement it’s my submission that your Lords will then find where the answer lies in relation to tried and true.
LORD PROSSER: That may well be the kind of thing I envisage but one doesn’t try the answer now.
MR. MOYNIHAN: I am conscious of that and my Lords again just trying to speak from my own perspective of trying to understand in my mind what the status of this advisory opinion is. If I may be forgiven for suggesting it’s almost the international equivalent of the Lord Advocate addressing. What your Lordships decide in this case obviously gives authoritive guidance to all the citizens of this country. This is not in any strict sense binding on any particular party and in particular it’s not binding in the stare Decisis or lega-decatio.
LORD PROSSER: It’s not a binding power according to English rules.
MR. MOYNIHAN: Nor is it lega-dicatio, it prohibits anyone from contending the point in the future.
LORD PROSSER: I am not absolutely sure that that’s absolutely true. One couldn’t answer that.
MR. MOYNIHAN: The way I have been looking at it is in a sense akin to my learned AD addressing your Lords. If I move through very structural questions your Lords have asked and I can only speak from having read the notes in this case. Your Lords have asked why is there a majority view, first of all meaning some of the judges became close to dissenting. I think it might be Judge Weeramantry, he submitted for abstination, he must vote on one side or another. There is a phrase which as I understand it is a concept in international law about whether the Court itself is entitled to or whether it is not and as I understand it the judges debate that principally in this case and obviously the view must have been – I have not sought to follow this through – the view must have been whether there was competency or not, it is inappropriate to adopt that decision so that a decision had to be reached and that by the casting vote of the President.
LORD PROSSER: It all seems to me to contradict rather than add to the persuasiveness to feel that they have to vote individually and if they feel co-operatively that they have to produce a single view, it means it’s driven behind the formalities of decision to see how persuasive the reasoning is.
MR. MOYNIHAN: Again if we defer consideration of that obvious question to the point I have striven to identify what I say are the core points and where at the margins this debate arose, the problem will then have either greater or less significance depending on how persuasive your Lords are. Before the decision was and what the margins were.
LORD PROSSER: I suppose that in a way is just like persuasive generally, if you look at American, Australian or wherever and whether it’s persuasive, you are not looking at the two, you are looking at the persuasiveness of the decision and if they are split it may be a dissenting or minority opinion.
MR. MOYNIHAN: My Lord I was exceptionally frivolant when introducing concluding remarks by Judge Ranjeva. The critical paragraph in the decision for your Lords’ decision and indeed for the learned Sheriff’s decision is E and what he said was, and he acknowledged the difficulty, he said, “He hoped that no Court would ever have to interpret E.” Maybe this Court does not because there is still the incompetency, the learned Sheriff has of necessity the task of interpreting E so that they did that and the reason the flippancy of my remarks may be retracted from this.
The reason for beginning with Judge Ranjeva is to acknowledge the difficulty of interpretation that arose in E. It’s not even a simple question, it’s that the critical conclusion begs a question.
LORD PROSSER: What put me off this a bit was that I didn’t find it easy to interpret and I started wondering hypothetically whether I should have to bother interpreting as it were with formal decision. If what really matters when looking at a previous Court’s conclusions, what really matters is whether one finds in their reasoning material which leads on to a particular conclusion and it may be that it leads to something that could have been expressed better, it may be that one finds the conclusion of a minority which we find persuasive and it may be that one doesn’t narrow too much for the actual formulation of E and one should be looking really to see is there in all this material something which we find persuasive as identifying a rule of customary international law.
MR. MOYNIHAN: Well the answer to that for my perspective is yes.
LORD PROSSER: But that may be open to us.
MR. MOYNIHAN: And that is why I am looking to the individual judges. I am seeking to distil from that the position that your Lords can accept, that your Lords are themselves not creating international law. Your Lords are simply acknowledging or declaring what is the common assent of sets of judges.
LORD PROSSER: That sails into my final question because if after that decision was issued the entire civilised world said yes we all assent to the proposition set out at E that might establish that that was indeed customary international law for that law and then one would really have to interpret assent.
MR. MOYNIHAN: And that is my Lords on the last question I come to this directly now. I think at the back of my mind some of the queries in my knowledge of international law, at the back of my mind some suggestion that there was discussion at the United Nations for the decision of what individual States think about this but I will need to – that’s a matter of fact, I cannot even recollect where I start on that. I have some suggestion that even the nuclear power States accepted A to E, I have some question having read it the United Kingdom would not assent to proposition F.
LORD PROSSER: Because if there was subsequent assent to E that would in the required way be a proper international opinion of juris establishing what is customary international law. If there is that one wouldn’t have to look behind us because from there on it would be.
MR. MOYNIHAN: One would have to look behind it because of Judge Ranjeva, only what does it mean? I will in fact in a sense give that answer as raising a point for those who are gathered here to assist me in their researches. I have this vague recollection that there is something, I may be wrong about that.
LORD PROSSER: Even if there is an assent to it that just brings us back full circle. I do apologise for pressing you in this way. You are here as the amicus curiae, these are questions I wouldn’t expect Counsel to deal with in the same way so that’s why I think we would use you as an amicus.
MR. MOYNIHAN: Well I hope in assisting me to understand that factual point we can combine resources. That explains the generality of it. As to again in a very simple way understanding what is the relevance of the case of the international judgment – if your Lords would allow me one moment.
Yes, your Lords have been provided with a copy of the Pinochet case, which is all three stages of it are 2000, Appeal Case part 4. If your Lords turn to Pinochet No. 3 and I happened to have looked at Lord Phillips of Worth Matravers, at page 281.
LORD PROSSER: Matravers I am told.
MR. MOYNIHAN: It’s an old diary, 281 letter H. My Lords he comments on the source of international law. 281. And it’s obviously in the context of immunity. “Many rules of public international law are founded upon or reflected in conventions. This is true of those rules of State immunity which relate to civil suit see the European Convention on State Immunity 1972. It is not however true of State Immunity in relation to criminal proceedings. The primary source of international law is custom, that is a “clear and continuous habit of doing certain actions which has grown up under the conviction that these actions are, according to international law, obligatory or right.” Oppenheims International Law. Other sources of international law are judicial decisions, the writings of authors and the general principles of law recognised by all civilised nations.” That’s Article 38 of the Statute of the International Court of Justice.
LORD PROSSER: That’s the Statute setting up the call.
MR. MOYNIHAN: That’s correct and my sole reasoning for mentioning that is that judicial decisions and I would say including that that the advisory opinion of the Court is recognised as being a source of law. In exactly the same way as decisions of this Court would be reviewed as a source of municipal law and that’s not to open up again that begs the question that I acknowledge is present as to how persuasive this particular advisory is and what I would proceed now to do is in a sense to say to your Lords that the decision is as persuasive as your Lords ultimately find it to be helpful in resolving this question.
If your Lords can see a clear answer from a minute analysis of this then it is a persuasive and helpful Authority. If your Lords are left in doubt then a different conclusion may occur. So my Lords that would answer in so far as I can at the present your Lords.
LORD PROSSER: As I say I am sorry.
MR. MOYNIHAN: No, no. One of them concerning the Statutes of International Court of Justice is a matter your Lords raised yesterday in any event.
What I propose to do is begin my submissions by simply outlining what I am going to say to your Lords in my submission and I begin by looking at the International Court of Justice Opinion itself. What I’m going to seek to persuade your Lords of are 7 propositions which I have summarised on page 1 and 2 of this note and what I will do is simply read those propositions out and give your Lordships the contents.
First, “The Court considered nuclear weapons in the abstract and did not consider specific scenarios (e.g. use against rogue States) or particular weapons (e.g. Trident 2).” The Court took into account the possibility of so-called clean or discriminating weapons, that is to say weapons that might be of a sufficiently small scale to amount to a proportionate response. The Court did that despite the absence of evidence that any such weapon exists. Leaving aside the possibility of discriminating nuclear weapons it will be my submission that the use of nuclear weapons would be contrary to customary international law, humanitarian law and the principle of neutrality and it would be contrary to that in any circumstances. And I stress the use.
Proposition 4, there was a reservation about the possible legality of the threat for use of nuclear weapons. (1) in self-defence and (2) where the survival of the State was at stake. It would be my submission to your Lords firstly that the threat or use of nuclear weapons would be unlawful in other circumstances and secondly even in those circumstances if any weapon can lawfully be used it is only a weapon of discriminating scale.
5, if the actual use of any particular type of nuclear weapon would be unlawful then the threat or use of that weapon is unlawful. 6, a policy of deterrence which entails either (1) singular intention to use force or (2) a declared preparedness to use force can amount to a threat. If the policy relates to a weapon the use of which would be illegal that threat is similarly illegal and finally the same holds true whether the question if considered at a time of war or a time of peace – and pausing there your Lords will observe as will those that has this in doing that summary I have identified the particular paragraphs of the judgment to which I will return. I intend to read the judgment in a consecutory way from the beginning through rather than break it down in this way. Your Lords will then be able to see what I gather up to formulate the specific propositions.
Turning to the facts about Trident and before I read the text there is something that merits being mentioned. I am conscious in particular given my position as the amicus that I make it clear what approach I am adopting to matters of fact. I am presenting on the basis of the evidence led by the Respondents at the trial which was uncontradicted at the trial.
LORD PENROSE: Wait till I understand what you mean “which was uncontradicted at the trial” in context. Could it have been contradicted?
MR. MOYNIHAN: The answer to that is yes.
LORD PENROSE: How?
MR. MOYNIHAN: By the leading of a witness. For example, I give my Lords an example. When we look at the facts I will say to your Lords that on the evidence led the United Kingdom does not possess a nuclear weapon of what I call discriminating scale. I will come to that in a moment.
LORD PENROSE: I found the Respondents’ list of witnesses long.
MR. MOYNIHAN: In addition to your Lords giving me some homework there and Miss Zelter spoke to me about something I should have mentioned earlier. I in answering a question where I said the Procurator Fiscal was put in an impossible position, I am told that that is factually incorrect and that advance notice had been given. I would prefer because I do not know the facts, I would prefer to leave it to others to answer Lord Prosser’s question.
LORD PROSSER: Particularly speaking to understand that notice had been given as to the witness and how one could be ascertaining what the evidence was and leading in the Crown case evidence which is in rebuttal in advance in the ordinary way that may happen.
MR. MOYNIHAN: The Procurator Fiscal also adopted the approach that he would object to the relevancy of this evidence. His objection having been repelled there are of course provisions for the trial to lead evidence in replication. Again I assume from what I have seen the Procurator Fiscal for whatever reason chose not to make such a Motion.
LORD PROSSER: You are saying that our ordinary rules could cope with allowing the Crown to lead contradictory evidence where they saw a matter as being open to contradiction even once they knew it was being admitted as relevant.
MR. MOYNIHAN: What I wanted to say to your Lords and not accuse the UK of having a weapon of significant scale. In my capacity as amicus curiae I obviously do not know what the UK position in fact is. In making the submission which I will do the factual premise what I am proceeding upon is that the UK does not possess such a weapon. I want it to be understood that all that I am doing is saying that was the uncontradicted evidence at the trial and I am not seeking to persuade your Lords that as a matter of abstract or absolute fact that is true.
Now my Lords, there is something in what my learned Sheriff says in her report that in a sense that echoes entirely what my factual approach to this will be and it’s worth mentioning to your Lords. I mention this to show your Lords that I am adopting the same attitude and it’s in her report at the very end of page 134.
My Lords, it’s about one-third of the way down the page there is a sentence that begins, “There was a risk that these followers…”, page 134. The learned Sheriff says this to your Lords in her report, “There was a risk that these followers would not appreciate that I was not so much saying that the use and deployment of Trident weapons was illegal but that I felt that I had no option but to say so in the absence of any contrary evidence being led by the Crown.”
Now my Lords I am not – because this is not an appeal I am not going to invite your Lords to say whether the Sheriff was right or wrong. What I wish to be known is that by the representations of fact that I now proceed to make rather as the learned Sheriff has said merely conclusions of fact that one would draw on the uncontradicted evidence of the Respondents’ witnesses.
LORD PROSSER: In a way it’s just an example of what every Court is always doing and what people don’t always understand namely reaching a decision on the evidence before it and if the apparently same issue arose on another occasion the evidence might be totally different and produce a totally different result.
MR. MOYNIHAN: Yes. I equally my Lord again in my capacity as amicus – it does merit being said that if your Lords answering the question, namely the legality of Trident obviously your Lords would wish to take care to say that that answer is being given on the basis of the uncontradicted evidence of the Respondents.
LORD PROSSER: Yes I appreciate that both in terms of your own standpoint and in a sense more generally of where general questions are asked in an Advocate’s references. A Court might feel it wanted to answer those generally and might want to have a whole hearing on evidence. The Court has already indicated it’s not doing that and that may tie in with the fact that questions of reference may arise out of the trial and that might be one reason for the Court here adopting the same standpoint as you are adopting, that if you go on the facts established at the trial with no implication beyond it, if we were ever to look at wider facts we would probably be going to questions which a Sheriff already explained were not the questions she was dealing with.
MR. MOYNIHAN: Again speaking as the amicus for your Lords there are three obvious approaches for your Lords given the limited nature of the factual material present. The first one, and this is the basis upon which I am presenting my submission, the first one is your Lords proceed as the learned Sheriff did, that is to proceed on the basis of the Respondents’ evidence, it was uncontradictory and to answer the questions on that factual matter. That’s the first possibility.
The next two possibilities are if your Lords are concerned or if submission were to be made that that factual material is inadequate or unsatisfactory. If any parties suggest to your Lords that that factual material is unsatisfactory or inadequate your Lords have two principal options. The obvious extreme would be that your Lords would accede to my Motion as to the competency and relevancy, in other words to refuse to answer the question without satisfactory factual material. That’s obviously one extreme and my belief to the competency and relevancy is resolved, it’s difficult to leave that option open.
The intermediate course, which is my learned friend Mr. Mayer’s option, would be that your Lords would by some means your Lords would admit all evidence in relation to the unresolved matters of fact and the evidence for the two sides.
LORD PROSSER: I am not sure that you referred to that option is still technically open but when it was raised before no argument was advanced to the effect that couldn’t be raised by other means. I think the time for that has probably passed. At best you said it was an issue that was stated there.
MR. MOYNIHAN: I am not impressing this. I am simply, I think, trying to emphasis that particular course, the limitation of the factual material that your Lordships had. I am not in my position as amicus – I don’t think it’s my role to advocate the solution.
LORD PROSSER: No, this would be another course to turn to evidence here if we had been asked to do that in a competent way.
MR. MOYNIHAN: Your Lordships my position as amicus has led me to take the two extremes that I have suggested. One is to present the submission if your Lordships are entertaining the wider question is to present a submission on the hypothesis of the facts advised from the existing evidence. If your Lordships are not persuaded to do so then my primary submission remains that the references should be regarded as incompetent and dismissed on that basis.
In relation to the choices between those two I frankly do not see myself as having a role to recommend either of those two.
LORD PROSSER: You have told us what your standpoint is.
MR. MOYNIHAN: I simply say that those are the options, I will proceed on Option No. 1, namely addressing your Lordships on the factual material. Your Lordships so far as the factual material are concerned again what I will do is read the proposition without looking to the references that support it. So far as the factual propositions are concerned there are 7 factual propositions.
Firstly Trident is a mass indiscriminate weapon. I stop there. Your Lordships have heard something of 100 kilotonnes. Professor Rogers, you will find that between pages 6 and 7 of his evidence, that Trident 2 has six warheads. Each of the 6 warheads is rated at 100 kilotonnes. Each of 6. Each of those 6 rated at 100 kilotonnes, which has a capacity of 8 times the Hiroshima bomb, so accordingly one missile has the capacity of 48 times the Hiroshima bomb.
I also understand that each one of the 6 can be programmed to head to a separate destination. So I mention that so that your Lordships are conscious when we are talking about a warhead of 100 kilotonnes we are talking about each of the warheads and they are grouped together in 6s. But that’s the capacity and that’s why I say as a matter of fact on that evidence and this is the evidence of the witnesses that the Trident is a mass indiscriminate weapon.
Secondly the evidence of Professor Boyle was that Trident is most probably going to be used against cities. That’s a direct quotation, most probably going to be used against cities and the specific example he gave was Moscow.
LORD PROSSER: Was that an opinion or an inference from the facts that was stated, how does he know that?
MR. MOYNIHAN: It’s a conclusion which he has drawn from study of the literature and would obviously be an opinion that he has drawn from his study of the literature.
LORD PROSSER: This is not from fact, one, it is from literature and is about Moscow.
MR. MOYNIHAN: It is going to be used on cities at 64 and the example he gives later at 96 is Moscow.
My Lords, the third fact is that Trident “is maintained, armed, equipped and ready for attack within 15 minutes.” 4, “Trident is an offensive, first strike strategic nuclear weapon whose primary purpose is mass destruction.” The principal source for that is Professor Boyle, between 100E and 102E and if one is thinking in these terms corroborative evidence is given by Professor Rogers at page 10. Fifthly, its potential use is not confined to survival of the UK – UK has considered it as part of the rogue State policy.
LORD PROSSER: Yes, these are the references.
MR. MOYNIHAN: And I am deliberately trying to simply do an overview. 6, this is the matter I have dwelt on earlier in discussion, Trident is not the small scale discriminating weapon that the International Court of Justice made the subject of its discrimination. The UK does not possess such a discriminating nuclear weapon. If your Lordships look to the evidence in particular of Professor Rogers and the passages that I have mentioned 12 to 13 and 29 to 32. Your Lordships will find that he responds, that the smallest weapon – a standard warhead I have said is 100 kilotonnes, he responds that the smallest weapon that the UK possess or may possess is in the order of 5 to 10 kilotonnes which is about the size of the Hiroshima bomb and his evidence was that even that smaller weapon, 5 to 10 kilotonnes, even that smaller weapon is one of mass destruction.
LORD PROSSER: Even if it’s described strategic is mass destructive.
MR. MOYNIHAN: As your Lordships heard in submission from Miss Zelter yesterday or the day before speaking of a sub-strategic weapon in the order of 1 kilotonne or less, your Lordships will see that in her submissions the evidence of the witness for the Respondents at the trial was that the United Kingdom does not possess a weapon of that size and the final matter at fact, No. 7, the UK deployed Trident at the time of the Gulf War and Kosovo in circumstances that were open to interpretation as a threat to use. And principal reference in relation to that are Professor Rogers, Miss Johnston and Miss Zelter, document 29 which is the Foreign Secretary statements in the House in February, 1998.
My Lords in the course of Miss Zelter’s submission asked whether the Iraq, in particular the Iraq situation was simply the US making threats and that’s what Judge Schwebel…
LORD PROSSER: Yes.
MR. MOYNIHAN: In fact on my reading of those passages and in particular Professor Rogers he said that the UK had participated in those threats and there was one occasion where it was made known that a nuclear submarine had been sent to Gibraltar and that was a calculated signal to Russia.
LORD PROSSER: A United Kingdom one? Because we participated in the United States threats as alliance threats to use American nuclear weapons. That wouldn’t be relevant to the British ownership point. We had a submarine which was at least open to interpretation was a threat to use one of ours as opposed to an American one. I read Boyle in detail, I have read the others, I wasn’t sure which points would arise.
MR. MOYNIHAN: That’s why I have gathered them up and your Lordships can read these relevant passages as and when is convenient to your Lordships.
My recollection is that Professor Rogers gave evidence that the United Kingdom nuclear submarine, the presence of this was made known and that was unusual. It was unusual to disclose where any of them was and the disclosure was made as a signal in the terms of which that it was used. A signal of preparedness. But those are the references I have gathered in the pages, in the following pages the specific passages which are relevant to these submissions.
Your Lordships will appreciate that the witnesses who I speak of I have broken them down so therefore if I was reading them what I would say is read them as they stand and your Lordships would be seeing as we pass various propositions.
As far as Professor Rogers is concerned I have indicated the main passages in his evidence and perhaps if I look at him.
LORD PROSSER: Can I just say before – obviously we are not pressing the Crown to adopt any particular position but if there are issues of fact which the Crown are content could properly be taken as established by the Sheriff or perhaps even further points of fact on which it is considered that we can proceed upon which can be established, that would be useful but where agreement is possible it should be clarified in due course.
MR. MOYNIHAN: Perhaps in Professor Rogers, if I can ask your Lordships to look at page 22 and I begin simply to get the context, at B it relates to the last of those facts that I have read. Professor Rogers was asked, “I have asked you, Professor,”, this is Evidence-in-Chief led by my learned friend Mr. Mayer, 22 letter B, Evidence-in-Chief by Mr. Mayer. “I have asked you, Professor, about targeting under the NATO umbrella. Is it possible for Britain to target independently of NATO? A.- It is possible, and has been possible throughout history of British Nuclear Forces. It is believed to be somewhat difficult with Trident because although this is not clearly in the public domain, there is evidence to suggest that for Trident to be completely accurate it needs American assistance, but I think the consensus amongst the independent experts is that Trident can be used but with perhaps lower accuracy if it is used independently. There is certainly a history of Britain deploying nuclear weapons outside the NATO context – for example in the Falklands War and probably in the Gulf crisis, and probably this year as well,” and that will of course be 1999. The same year of the trial.
LORD PROSSER: That being?
MR. MOYNIHAN: The ladies acted on the 9th of June, 1999, when he is talking about this year he is talking of the same year in which they acted. He says, “and probably this year as well. There have been two incidents in the last 12 months where there is evidence of British Trident deployment which relate to international policies. One was at the time of the Gulf crisis with Iraq last December when it was reported that a Trident submarine made its presence known at Gibraltar. That is a very unusual circumstance which appears to have been sending a signal that a Trident submarine was available.”
LORD PROSSER: He doesn’t just mean by the Press, he means that somehow released by the Ministry of Defence.
MR. MOYNIHAN: Yes.
LORD PROSSER: Well you say.
MR. MOYNIHAN: Well that’s my interpretation of it. I will make no more out of it.
LORD PROSSER: It’s just an unfortunate word to use.
MR. MOYNIHAN: I think I draw that interpretation from what he goes on to say about an unusual circumstance. “That is a very unusual circumstance which appears to have been sending a signal that a Trident submarine was available. Much more recently during the conflict in Kosovo earlier this year, at the height of that conflict Russia, which was very antagonistic to NATO’s actions declared – at least it was not done officially but unofficially – word was given that the Russians were going back to targeting NATO facilities. It had claimed it was not doing that previously, and by a coincidence shortly after that a second Trident submarine took to sea from Faslane. That was reported in the Daily Telegraph in London and was reported as sending a message to Russia that Britain had its full capabilities available.”
LORD PROSSER: It casts some doubt on whether overtly the Ministry of Defence were intending to send any such message, relations between persons and government are not always clear.
MR. MOYNIHAN: That was why I said my Lords, I am working with blinkers on, I am only looking at what’s in the evidence. If I can make this and your Lordships can decide whether it’s an inappropriate justice decision, he is speaking of earlier that year, earlier in 1999 in the context of Kosovo in that second example and December, 1998 in the context of Iraq. Your Lordships will recollect that the statement to the House by the Foreign Secretary in February, related to Iraq.
LORD PROSSER: This does illustrate the point that even uncontradicted evidence might be rejected by a Court on the basis that it wasn’t clear what it was really saying. So this is a mixture of fact and inference. One might read the view that the inference that he drew was not justified by the facts he stated. That main issue remains open for a Court even where there is no contradictory – I am not trying to talk about this particular issue.
MR. MOYNIHAN: I should explain to my learned friend I would leave all material to others. In direct answer to your Lords that is yes and that is why I have explained to your Lords that there are these three options available. If your Lords, given the weight of the question that was being asked feel that the material available is inadequate to admit of a proper answer from this Court to this question then option 3, which is competency and relevancy, is one that might…
LORD PROSSER: I think you made the suggestion earlier it might get one who distances itself from this particular case and gives some general answers that don’t tie in with the facts. There are a whole range of possibilities.
MR. MOYNIHAN: To be candid my Lord unless your Lordships have the factual context to bring to bear in answering the question your Lordships will be unable to answer the question because for example your Lordships will be unable to bring this continuum that is paragraph E of the International Court of Justice Decision without knowing whether the UK does or does not possess a small discriminating weapon.
LORD PROSSER: If you are right on your interpretation of E.
MR. MOYNIHAN: Before your Lordships embark on the consideration of E…
LORD PROSSER: I don’t know, it depends on the juncture you start at.
MR. MOYNIHAN: I put my personal view which is no longer than that – without some factual material to bring to bear my personal view is it is difficult to interpret let alone answer the question. That’s entirely a matter for my Lords.
LORD PROSSER: Yes.
MR. MOYNIHAN: That was the first mention there was. Professor Rogers returns to this on page 30.
LORD PROSSER: In your note you say 22E and 25E.
MR. MOYNIHAN: At 25C to D. 24C, “So, that procedure was unusual? A.- It was. It was certainly unusual.” I think that’s the public disclosure of where the vessels were – but was it meant to, as you say, send a signal? It was meant to send a signal and I think the problem is that it was very subtle, it was a sort of almost minute response to changing circumstances and I suppose that you have a combination of a system always deployed with the possibility of a sudden crisis developing at any time.
The other context I mention was that this week with India and Pakistan, this week India and Pakistan quite inexplicably and suddenly India and Pakistan are in a state of tension I could not have predicted that on Monday, similarly it is possible that virtually any day that a new crisis could arise in India. There is an ongoing war there and there are bombing raids on India, at least it was and India has only to retaliate and suddenly a crisis would develop and then we would return to the theme that I am addressing your Lordships on.
My Lords, Mr. Mayer, “I asked you about sending a signal. It may be obvious but if you can explain to the jury what was that signal? A.- The signal was a signal of capability of intent. It is sending a message to another State that we have this capability, and we can use it.” My Lords I stop there and the reason why that particular answer is significant is your Lordships have heard a submission that there is a distinction to be drawn between when we use this term an implicit threat which has no identified victim, in other words a threat to the world at large. The distinction between that and a threat which has a specific target. On the basis of that answer it would be my submission to your Lordships that what this witness was speaking of was a signal or a signal given to a specific State or States and accordingly a matter that could properly be regarded and this is my seventh final provision, could properly be regarded on any view a threat.
LORD PROSSER: That kind of target, as it were ad hoc, might be more significant than the other of targeting say Moscow which was the actual target because Moscow might be a rather out of date target in the light of some other government although the weapons may primarily have remained targeted on it. So one like this might be rather significant but this is specific to new circumstances.
MR. MOYNIHAN: Judge Schwebel, “I have now come to be persuaded to look at the law.” Judge Schwebel is, bearing in mind he is a dissenting judge, Judge Schwebel is one who pays particular attention to the nature of a threat and in fact he takes the view that the threat the Americans made at the time of the Iraq War was legitimate. He very helpfully explained, which is the same distinction that Mr. Di Rollo relies upon, which is a deterrence which is at one stage remedy from a specific threat. If I read his Opinion he would not regard deterrence as a threat in the international law sense.
LORD KIRKWOOD: Who are you talking about?
MR. MOYNIHAN: Judge Schwebel in the International Court of Justice would regard the deterrence per se as a threat.
LORD PENROSE: Not targeted, the specific deterrent.
LORD PROSSER: He might be if they were targeted on Moscow, that might be… (inaudible)… but it might never be that at the stage of deterrents, I suppose, if in a sense it wasn’t….something more immediate.
MR. MOYNIHAN: What I was going to say to your Lordships although he draws that distinction bear in mind he has also that a threat can be lawful. We must bear in mind that Judge Schwebel is of the view that a threat can be lawful. Even he speaks of what happened at the time of the Iraq War as a threat properly so-called. In other words we are not talking about deterrents, consistent with mere possession, we are talking about the threat of use against a specific State and so again returning to a reason for that divergence.
It’s in the evidence of the answer of Professor Rogers, in particular it’s 23 coming through to 25 but culminating at 25.
I would make the submission to your Lordships that there is material available in this evidence on which the questions of issue in this case can be approached on the basis that the UK has threatened the use of Trident 2 against a specific State or specific States. And to complete that there is a later passage which begins at page 29 just above letter F. Again having said that I propose now to read the evidence, if I go back to 26D in Professor Rogers’, “So, your evidence is in recent history that this is not a one-off. It has happened more than once? A.- It has happened more than once, and it is a feature of nuclear deployment. I think in the public mind nuclear weapons are solely weapons of massive last resort deterrence. This is what is called the declaratory policy, and all the major nuclear powers express that commonly. The reality is different. It is a deployment policy which is about the potential use of nuclear weapons, even potential use in conflicts which fall short of World War, and there is abundant evidence of this in British and American and of course in Russian thinking as well.”
That passage is relevant to one of my other propositions, that passage is relevant to Proposition No. 5. Your Lordships will recollect that paragraph E of International Court of Justice Opinion relates to the possible legality if the survival of the State is at issue. As I understand the evidence from these witnesses, and Professor Rogers is just one of them, the UK does not confine its policies to the use of Trident in the event of the survival of the State being in issue. The UK also contemplates use in what is termed “Rogue State Policy”, dealing with rogue States such as Iraq where some, or a large number of our military personnel may have their lives at stake but the survival of this nation is not an issue.
LORD PROSSER: I don’t know that I know what a rogue State is. In other words I think I would have assumed when one categorises a rogue State it is one which might out of the blue perhaps rationally do something which was indeed a threat to the survival of some other State. I mean anything short of that seems to be perhaps short of being a real rogue in that league.
MR. MOYNIHAN: I should be aware I am drawing inferences, I am repeating the facts of the evidence and I will flag that up. The inference that I draw from the evidence and in the light of having read Judge Schwebel in International Court of Justice is that what was happening at the time of the Iraq War was that the UK and the US anticipated that Iraq might use chemical weapons but in the theatre of war, in other words in the Middle East and the threats were made to protect the health and wellbeing of our military personnel.
The threat as I read it was that Iraq…
LORD PROSSER: It wasn’t a threat for example to deliver lethal chemicals over London or New York.
MR. MOYNIHAN: No.
LORD PROSSER: Because that might be seen as survival of the State. But you say that wasn’t in issue at the time.
MR. MOYNIHAN: That is consistent with the statement which is the statement of the Foreign Secretary. I am so conscious of not wanting to make my own factual assertions. If your Lordships look to what is Miss Zelter’s Production No. 29.
LORD PROSSER: Yes.
MR. MOYNIHAN: Which is the Foreign Secretary’s statement to the House on the 17th of February, 1998. It’s as well that we look at that because it is not geographically restrictive. There is, at least in my copy, some underlining. I begin at the paragraph 4, “The task of UNSCOM is to find and destroy.” I am beginning in the lefthand column.
LORD PROSSER: The paragraph before the one that was marked?
MR. MOYNIHAN: That’s right my Lord. “The task of UNSCOM is to find and destroy Saddam’s chemical and biological weapons. If we cannot get agreement that enables UNSCOM to do that task effectively on the ground, we are ready to do it by air power. Saddam should not doubt our resolve, nor should he doubt that, in the event of military action, his military powerbase would be hit hard. The air power now in place in the Gulf is substantial. There has been some recent speculation that Saddam might retaliate with chemical or biological weapons. Our assessment is that the threat of such retaliation is low, and it would be difficult for him to square any such retaliation with his continual claim that he does not possess any such weapons. As in 1991 he should be in no doubt that, if he were to do so, there would be a proportionate response.” That is obviously after the conclusion of the desert storm conflict and therefore would not relate to the protection of our personnel at that time. 1991 was the time of the desert storm.
LORD PROSSER: No, but it’s still…
MR. MOYNIHAN: It’s still these witnesses say that such language and we will come to the reason for that directly in the passage, this language about a proportionate response is understood to be a signal that it would be a nuclear response. For this reason the UK does not possess any equivalent chemical or biological weapon.
LORD PROSSER: No, but he was talking after the alliance at that point and there might be massive retaliation with normal weaponry.
MR. MOYNIHAN: If I then read what the witness is saying.
LORD PROSSER: We are into the field of inference.
LORD PENROSE: 1991.
MR. MOYNIHAN: That’s what Judge Schwebel said, Judge Schwebel gives an account drawn I believe from books published by American politicians and newspaper articles. The reason he says the threat was lawful is that what happened was the Americans, having made a threat, which was a bluff, having made a threat the Iraq Foreign Minister was subsequently reported as having said the Iraqis should not deploy chemical weapons because they offered a nuclear reprisal. So in answer to your Lord’s question as a result of the threat no deployment of chemical weapons was apparently made.
LORD PROSSER: As in everything in these affairs it depends who you believe. If an Iraq minister says “We were afraid of X or Y” I don’t know whether I would believe him, whether a government would believe him. I mean it’s very imponderable stuff.
MR. MOYNIHAN: That was why I began….
LORD PROSSER: That’s why one has to be very careful about the inferences drawn.
MR. MOYNIHAN: I am conscious that my Lord Penrose in particular, when I was looking at what the Foreign Secretary says, he said one would not look at that as a nuclear threat, I did then say the way this language was represented by the witnesses in this trial was giving a signal off whether it bears that interpretation is a matter which your Lordships may wish to consider.
LORD PROSSER: Because quite apart from the possibility of people speaking with forked tongues or many tongues in the political arena it may be that understandings and interpretations are themselves very personal, especially when people are talking about what they understand other people’s understanding to be.
MR. MOYNIHAN: Precisely so. Even when we see – I will flag it up for your Lordships – where Judge Schwebel discusses this matter, I am not proposing to read it, your Lordships will see some of the sources are newspaper sources and the gentlemen of the Press will forgive me, some people don’t attach the greatest weight of what’s reported in newspapers. We are hampered by a lack of reliable material.
LORD PROSSER: Sorry, I interrupted Lord Kirkwood.
LORD KIRKWOOD: That paragraph finishing with the words, “proportionate response”, there has been some speculation that Saddam might retaliate with biological weapons. Bearing in mind it’s 1998, retaliate against what?
MR. MOYNIHAN: Retaliate in relation to the forcing UNSCOM upon Iraq.
LORD KIRKWOOD: When you referred earlier you are referring to the effect of nuclear – the nuclear power to protect our military personnel, that was back in ’91.
MR. MOYNIHAN: I presume so. because I flagged this up that I set out my source for making these representations about Iraq include the three principal sources. (1) the evidence in the trial, (2) the statement by the Foreign Secretary which I have just read, that Miss Zelter confirmed was available at the time of the trial and (3) and most comprehensibly Judge Schwebel said in the International Court of Justice and that is not evidence in any shape or form in this case. So I am conscious that I have flagged up in my note for your Lordships the specific source of which I would rely which were evidence in this case which I would rely were the factual proposition so far as a threat is concerned.
If I return to that. I was looking at 23, 24 and 25 and now if I come to 26 and 27, I caught up in the passing.
LORD PROSSER: We are returning to 29.
MR. MOYNIHAN: I am returning to 29. If your Lordships allow me just a moment. Yes, 26 to 27 was on my list, that relates to another matter, 29F to 32D. 29F my Lords, “Now, I could perhaps ask you about a proposition that there could be limited use of Trident 2,”, and my Lord this is turning to the question of the small bomb. “Limited use of Trident 2 that would not escalate into an all out use of Trident 2, is that in your view a plausible scenario for for example small tactical warheads? A.- It is plausible that such deployment and use could be suggested. We had an example of this in fact on Monday night when the former Prime Minister John Major was interviewed and said, to use the phrase, words to the effect that “If Iraq had used chemical or biological weapons in 1991 they were told privately the response would be massive”, in other words, nuclear.”
LORD PROSSER: It’s important to note the quotations stop after massive.
MR. MOYNIHAN: If I looked at the Foreign Secretary’s phrase I do not for one minute suggest or communicate an interpretation to your Lordships, I do not see that as an important function. What I can say to your Lordships was that this was the evidence in relation to 1991, Iraq. This witness considered what the former Prime Minister said as indicating a nuclear response. The questions then proceed, “Does Britain possess chemical or biological weapons? A.- No. Q.- So, the only massive response could be what? A.- It had to be nuclear. The problem with saying that you would use sub strategic”, this was called small weapons. “The problem with saying that you would use sub strategic Tridents or, if you like, tactical Trident in a limited role is that there are two basic flaws in that argument. The first is that even a limited use of, say, a single warhead would be using a weapon almost the size of the Hiroshima bomb. Moreover, the targeting would virtually certainly be against a command bunker or a biological weapons plant or some other ground target which means that the explosion would be what is called a ground burst and that would produce massive radioactive fall out that you could not separate the effects of from the military and civilian.” In other words one could not discriminate between military and civilian personnel.
“The second problem is that once even one nuclear weapon had been used we would have broken the threshold which has just about survived there since 1945, and one would have to anticipate an escalation. For example, if a nuclear weapon was used against Iraq, then almost certainly the Russians would go on a high state of alert and quite probably propose retaliation. The idea that it would be kept separate, that you could have a small nuclear war in a far off place, I think is a dangerous illusion.”
Your Lordships will see when you look at the judgment the significance of that particular passage because when the judges of the International Court were considering a so-called weapon what they had in mind was possibly that a nuclear weapon could be dropped on a ship at sea or on an army in the desert and the effects of the nuclear fall out would be confined or the nuclear explosion would be confined to that ship or that place in the desert. That was the discriminating weapon and this witness is saying that is just not possible.
LORD PROSSER: I think we are all fairly familiar in the kind of things that was said about nuclear weapons. I am still bothered on the shift from the John Major word “massive” to his word “nuclear”. I mean we have already touched on the fact that I think most people were killed in Tokyo than Hiroshima. At the time that was presumably massive what we did to Tokyo in any parlance. Is there anything in the evidence about the capacity of the Alliance to deliver massive destruction without use of nuclear force?
MR. MOYNIHAN: No, and that is a matter of which returning to a theme now was a question posed by my Lord Penrose, could the Fiscal have contradicted the evidence of these witnesses. One possibility would have been evidence of representation as to what a massive conventional response and otherwise no nuclear response might have been and there was no contradiction.
LORD PROSSER: There was no contradiction and no basis for the inference depending on each stated side.
MR. MOYNIHAN: In relation to such a question I would have to pass to others in answer to this because I do not see it as my function.
LORD PROSSER: There was apparently evidence not so much in contradiction as in explanation of residual evidence.
MR. MOYNIHAN: My understanding again was I derived this understanding more from Judge Schwebel is that such language in diplomatic circles is understood to be nuclear. As I said to your Lordships yesterday if you ever ask a politician directly about many things and certainly about this you would not get a direct answer, this is diplomatic language.
LORD PROSSER: Even if it doesn’t mean nuclear, does a word weight enough to include the word nuclear because nuclear is massive.
MR. MOYNIHAN: As I understand from Judge Schwebel what America threatened was in fact at the time a bluff, the President at the time had decided there would be no nuclear weapon but I think the Secretary of State is quoted in his own book as having said of course “We weren’t going to tell the Iraqis that”. We do live in the realms of threat and one knows that a threat can be made without necessarily the intention of having to carry it out.
My Lords, so far as this witness is concerned the only other passage that I think would merit being drawn to your Lordship’s attention is at 12C and this is the smaller weapons that I mentioned. 12C. Of course I look at my list and say I would begin at 11D, “Are you aware of the phrases ’strategic nuclear’ and ’sub strategic nuclear’? A.- Yes I am. Q.- Could you explain to the ladies and gentlemen what does it mean? A.- Strategic nuclear in the context of Trident means the missiles are loaded with the very powerful warheads, the ones I described, each of 100 kilotonnes. Sub strategic means that some missiles may be loaded with rather smaller warheads of a similar kind of power to the tactical nuclear weapons which Britain deployed for many years. Perhaps I could just explain that until last year Britain had the missile submarines and they also had tactical nuclear bombs, mainly on Tornado aircraft. The main one was a bomb called the WE177. Britain decided to phase out its aircraft-based bombs and rely on Trident both for strategic and what they now call sub strategic or tactical roles. Q.- Whether strategic or sub strategic, are you aware of the practical effects of one of those bombs being exploded? A.- I am, and I should say that the sub strategic Trident warheads with what would be described as a low yield would still have a yield of about 5 to 10 kilotonnes, close to the yield of the Hiroshima bomb, and that would be the smallest version of the warhead. Q.- So, in your view, would even the lowest British nuclear bomb in the Trident 2 facility be a weapon of mass destruction? A.- Certainly, yes. Q.- And why do you say that? A.- Well, essentially if you have a weapon which explodes with a power of at least 5,000 tons of high explosive then it has, to put it mildly, a massive effect. It has a mass destruction effect”. And then he goes on to…
LORD KIRKWOOD: Was there any evidence about the tactical nuclear bombs on Tornado aircraft which he said they phased out?
MR. MOYNIHAN: No. My Lords, the evidence is as I recollect it that this aircraft having been phased out the UK’s only nuclear weapon is Trident 2.
LORD KIRKWOOD: Were they discriminating nuclear weapons?
MR. MOYNIHAN: Discriminating depends on its scale, the normal scale is 100 kilotonnes, 8 times the capacity of the Hiroshima bomb.
LORD KIRKWOOD: That’s your sub strategic?
MR. MOYNIHAN: No, that’s the strategic is 8 times Hiroshima and the witnesses are saying at that scale is not discriminatory. The evidence is Professor Boyle speaks to sub strategic or tactical, we could not have a discriminating weapon such as the ICJ, he does not have any size on the sub strategic, the only evidence on the size of the sub strategic is that of Professor Rogers at 12A to E.
LORD KIRKWOOD: You have got your Trident strategic and your have got your sub strategic.
MR. MOYNIHAN: Yes.
LORD KIRKWOOD: In light of the comments made earlier the United Kingdom does not have discriminating nuclear weapons and the tactical nuclear bombs, particularly the WE177, was that in fact a discriminating or was there any evidence about it?
MR. MOYNIHAN: There was no evidence that…
LORD KIRKWOOD: Was there any evidence there that these bombs no longer exist?
MR. MOYNIHAN: The evidence was the UK’s only weapon, the only nuclear weapon is Trident 2.
LORD PROSSER: I thought it was we didn’t have the aircraft to deliver, we haven’t got WE177.
MR. MOYNIHAN: I think there are two points to answer my Lord Kirkwood. As I understand the evidence we have only one delivery system which was Trident 2. The normal parlous if one can use that term, would be 100 kilotonne warhead, that’s the normal parlous for Trident 2. As I understand it the evidence was suggesting that that normal parlous could be replaced by a similar weapon, the so-called sub strategic weapon, that sub strategic weapon is still nonetheless of the capacity of 5 to 10 kilotonnes. Each warhead 5 to 10 kilotonnes. These witnesses are saying that at that scale the weapon cannot discriminate between civilian and military personnel. In other words one cannot confine its impact.
LORD KIRKWOOD: I understand that perfectly, what I was querying is what happened to the tactical nuclear bomb, the still smaller scale.
MR. MOYNIHAN: The still smaller scale, the only two scales we now have are 5 to 10 and 100 and I find the reference that there was evidence…
LORD PROSSER: That’s not as a matter of delivering, we haven’t got the Type 1 any more.
MR. MOYNIHAN: I can’t give evidence to your Lordships.
LORD KIRKWOOD: I wondered if there was evidence about that.
MR. MOYNIHAN: There was evidence that the only weapon we now possess is Trident. If I can find it. If your Lordships give me a moment I will find that. My Lords, firstly in Professor Boyle at page 103. Perhaps what I should do is take a few moments to find the particular passage.
LORD KIRKWOOD: In 103?
MR. MOYNIHAN: 103.
LORD KIRKWOOD: Britain is now stripped out of the nuclear weapons, they no longer employ any of them.
MR. MOYNIHAN: Yes.
LORD KIRKWOOD: No longer employ them, does that mean we have them?
MR. MOYNIHAN: I can’t say, as in all matters I can’t go beyond this, I understand and I have – perhaps what I will do is come back to this after lunch. I have a reference in my mind a witness said “The only weapon we now have is Trident 2.”
LORD PROSSER: It may be in contra distinction to the American where he says, “Over Kosovo where you were able to see on your television screens NATO jet fighter bombers using accurate…”
MR. MOYNIHAN: My Lords, the passage I had in mind is in Professor Rogers, 6B is Professor Rogers. The third line on page 6.
“What is the British nuclear weapons system as at 1999? A.- In 1999 the British nuclear weapons system consists of one system alone, that is, the Trident system. That consists of four nuclear-powered missile submarines, one of which is still under construction. The submarines operate from the Royal Naval base at Faslane, and each of the submarines can carry 16 Trident D5 missiles. These missiles have a range of up to 5000 miles. Q.- If you could perhaps do a comparison with the bomb that was dropped on Hiroshima and each warhead on a Trident missile system – how would that compare to the Hiroshima bomb? A.- If you take a single submarine with 16 missiles, each missile can carry 6 thermal nuclear warheads, but they can be targeted on quite a different target. They are not all aimed at one target. Each of the 6 warheads is rated at about 100 kilotonnes of explosive power. That is the equivalent to 100,000 tonnes of TNT. The Hiroshima bomb exploded with a force of about 13,000 tonnes of TNT, 13 kilotonnes. So, the direct answer is that one Trident warhead is equivalent to about 8 times the power of the Hiroshima bomb. Q.- And how many warheads did you say? A.- The government has announced that normally the submarines will be loaded with 48 warheads as a maximum. They can carry more, but that is the current deployment.”
So in answer to Lord Kirkwood’s question it falls into three stages, one we now have only one delivery system, Trident 2. Secondly, looking t 6 to 7 of Professor Rogers the normal parlous is 100 to 100,000 kilotonne warheads, that’s the strategic use.
Proposition No. 3 is the sub strategic use of those weapons, those delivery systems, the sub strategic use is a weapon in the order of 5 to 10 kilotonnes which he says is something in the order of the Hiroshima bomb and your Lordships will see that the Hiroshima bomb was apparently 13 kilotonnes.
So we have one delivery system and two capacities of warheads. The evidence of this witness in common with that of Professor Boyle that I will not go through is that both the strategic and sub strategic, both the strategic and sub strategic capacities are so great that these bombs cannot be regarded as discriminating weapons. In other words that are capable of deployment against military personnel only and not having an effect on the civilian population.
LORD PROSSER; It sounds as if each missile which can carry 6 warheads might also be launched with less than 6 warheads because if there are 16 missiles on board then a maximum of 48 warheads, there is at least an allowance for not sending all 48 warheads in the way you could at 8 missiles. You have got as many missiles again. We probably don’t need to go into that because you say even if a missile was sent off carrying one warhead you are already into an indiscriminate level.
MR. MOYNIHAN: There was evidence about how one can substitute the little one for the big one I assume if one was making a sub strategic strike, what Miss Zelter called the life induction, what one would do is put one sub strategic warhead on a missile to deploy that so that what is delivered is one warhead with a….
For my hypothesis looking at the International Court of Justice all that matters is what professor Rogers said that this smallest weapon we now possess is rated between 5 to 10 kilotonnes and that is, he says, a non-discriminating weapon.
LORD PENROSE: Can you help me with terminology. We see an example the use of the expression a warhead of about 100 kilotonnes. The expression of warhead of 5 to 6 kiltonnes is used, is it used in the same sense as we understand?
MR. MOYNIHAN: My understanding is yes it is. I understand warhead to mean an individual bomb, in other words something that can be targeted, yes, an individual bomb, yes as I understand it. Whether that’s correct…
LORD PROSSER: I am not sure whether the word bomb is still used.
MR. MOYNIHAN: It’s an indivisible device.
LORD PROSSER: Yes.
MR. MOYNIHAN: In a sense what I have done by that reading of Professor Rogers’ evidence is in fact to give your Lordships what one may call a representative sample of the factual evidence that can inform my submission in relation to the proper interpretation of the ICJ Opinion and it might be as convenient a time as not to pause. I will leave for your Lordships and my learned friends, if any of them, to seek to persuade the Court it’s necessary to read the rest of the evidence, I leave the rest of the evidence and I have indicated what needs to be read for my part and I intend to flag up the relevant passages that are there and can save time if it can be done on that basis.
But on that basis I simply invite your Lordships to adjourn at this stage.
LORD PROSSER: So when we come back you will be returning to the analysis of what was done by the ICJ.
MR. MOYNIHAN: Yes, what I have done is given a flavour of the evidence and my factual premise would be the I’s that would look at the ICJ.
LORD PROSSER: Thank you very much. We will adjourn now till 10 to 2.
After an adjournment for lunch.
LORD PROSSER: Yes now, Mr. Moynihan.
MR. MOYNIHAN: My Lords, if I can attempt now to summarise quite briefly the factual proposition which I seek to carry forward to the opinion of the International Court of Justice and they come essentially to three propositions. Firstly the UK does not possess a discriminating weapon and by discriminating I mean one of scale sufficient to discriminate between civilian and military personnel. That’s the first, the second factual premise is that the UK has threatened the us of nuclear weapons against specific States. And thirdly that these threats have occurred in the context of a policy which is not confined to the use of nuclear weapons where the survival of the State is in issue.
LORD PROSSER: You have used there a phrase that I know what the survival of the State means. Does that emerge from what the ICJ say or is there submissions to what it means?
MR. MOYNIHAN: I think what I would do whatever it means it does not include the type of situation that was occurring in the Iraq and indeed the Kosovo conflicts.
LORD PROSSER: Yes I can see from your purposes it may be enough to say that.
MR. MOYNIHAN: And your Lordships will see immediately in the Case 2, or the Case 3 proposition that I – if I take that negative approach. This comes directly to the opening discussion this morning of the essential points my Lord was asking about what your Lordships do in reading the Opinion of the International Court of Justice and considering the individual opinions of the judges on the other. My submission is that on the factual matrix which has those three essential propositions, on that factual basis your Lordships can be satisfied that the UK is acting unlawfully by the principles of Customary international law. More particularly the principles of Customary international law to which the UK has assented.
My Lords, the proposition No. 2 is I will seek to persuade your Lordships that that combination of circumstances is what I termed this morning the core, the core, otherwise the matters upon which there was no dispute. And 3, by way of contrast, the margins on which there is obviously hot dispute concern three matters and I will put them in the order to mark the principle and premise.
The first marginal premise was the legality of discriminating nuclear weapons. The second was the legality of what I might call mere possession under a policy of deterrence. By mere deterrence what I mean…
LORD PROSSER: Mere possession.
MR. MOYNIHAN: Pursuant of policy of deterrence, what I mean by that is a policy of a threat of use and the third marginal matter related to the use of nuclear weapons where the survival of the State was in issue. So all that I am now doing is in a sense flagging up in Proposition No. 3 the marginal matters which led to the uncertainty of the dispute are not present if your Lordships proceed on the factual basis on which I proceed and accordingly the core of the judgment your Lordships can be satisfied on there is a contravention of Customary international law.
LORD PROSSER: Can I just pick up one point, in your first proposition you said we can be satisfied that the UK is operating unlawfully on the Customary international law in particular to which the UK has assented. I think it probably is me but at some point I got confused as to whether there are two levels of assent, in other words the UK may assent to a rule of international law that it was a rule of international law which applied to the UK but might require a different assent before that rule of international law applying to the UK was incorporated into domestic law. Are there two levels or was I going up a wrong avenue there, or don’t you have a proposition on that?
MR. MOYNIHAN: The answer to that my Lord is that I recognise arising out of the cases about the incorporation of Customary international law into admissible law that that very question does arise. Miss Zelter has raised in her submissions whether in the light of principles such as Nuremberg our domestic law in relation to that matter is now to be regarded as law. I do not for my purpose seek to argue that extreme proposition for this reason that I can demonstrate to your Lordships very briefly by reference to the ICJ the principles of Customary international law are assented to by the UK.
LORD PROSSER: And assented to by incorporation.
MR. MOYNIHAN: Yes.
LORD PROSSER: If you take conventional international law at such a parallel we can become a party to a treaty or a convention in a way that would make it affable to the UK as a State in terms of international law but we might delay incorporating by Act of Parliament in which case it’s pretty plainly the law has not been incorporated in the UK law and I wondered whether there was a possibility of a law having been assented to by the UK but not having been incorporated. You say that will not arise here because there are both assents if there are two.
MR. MOYNIHAN: My Lords, I do not for the purposes of this today take your Lords’ perception of falling between two stools, namely there might be a principle of customary international law sufficiently alright preferences to be recognised as such and while the UK does not assent to it and therefore…
LORD PROSSER: Ah well, that’s another action we might be bound by so but not having assented to it I was more concerned we had assented at the level of international law and not municipal law.
MR. MOYNIHAN: The answer to this, the difference between conventional and customary international law is that conventional international law treaties, even though we are signatories and accordingly fully assent to the treaty, that does not proceed effect in our municipal law, subject of course to the Authorities.
Customary international law by contrast provided, and the only reason for mentioning this the Authorities speak of this, Oppenheim has been dictated Customary international law provided we have assented to it automatically is incorporated into municipal law unless it conflicts with some statutory provisions.
LORD PROSSER: I appreciate the statutory provision, ipso facto the consent to it is a matter of international law. Ipso facto means it’s incorporated.
MR. MOYNIHAN: That’s correct.
LORD PROSSER: Well, right.
LORD PENROSE: Does that mean a policy of assent to oppose must acknowledge an incorporation?
MR. MOYNIHAN: I will show your Lords where the proposition comes from. It does not offer that interpretation because it’s simply the practice of the State which does not make it a consensus though will be part of our municipal law. I will show your Lordships, if I deal with that.
LORD PENROSE: But is it dependent upon a Statute?
MR. MOYNIHAN: The answer to that is two-fold. Firstly so far as the ICJ itself is concerned there are what it calls in this judgment “intransgressible principles of international customary law”, that was used in paragraph 79 of the Opinion.
So far as the ICJ is concerned and this may be part of the package of Nuremberg so far as the ICJ is concerned and Nuremberg principles there can be intransgressible principles of Customary international law and domestic law again does apply. Domestic law would be any law or statute. The way that our law is set up at the present time is in conflict with that because our law believes that for automatic effect in municipal law Customary international law must be not in conflict.
LORD PROSSER: We go on ascertaining that our own decision for statutes can exclude other domestic law found in intransgressible principles of international law. At least in theory.
MR. MOYNIHAN: Yes. Again as a convenient shorthand to introduce this because in fact I am not in disagreement with my learned friend Mr. Di Rollo on this proposition, the reference is in Pinochet again. If I ask my Lords to look at 2000 Appeal Cases part 4 at Pinochet No. 1 and it’s the dissenting speech in Pinochet No. 1 of Lord Lloyd of Berwick at page 90. Perhaps if I ask your Lords to go back to page 89. I don’t believe the Faculty is dissenting is of any moment relating to this particular point.
LORD PROSSER: Right.
MR. MOYNIHAN: Page 89, letter G, “Summary of issues. The argument has ranged over a very wide field in the course of a hearing lasting 6 days. The main issues which emerged can be grouped as follows: (1) is Senator Pinochet entitled to immunity as a former Head of State at Common Law? This depends on the requirements of Customary international law, which are observed and enforced by our Courts as part of the common law.” And he then goes on to other statutory matters which as your Lordships will be aware that case turned on a process analysis of the statutory provisions.
Question No. 1 in part contains my own submission as to the answer to which I ask your Lordships to turn to page 90, letter E. His Lordship states, “As already mentioned, the common law incorporates the rules of Customary international law. The matter is put thus in Oppenheim’s International Law, page 57.” And I pause to say this is the passage which my learned friend on behalf of the Crown relies. “The application of international law as part of the law of the land means that, subject to the overriding effect of statute law, rights and duties flowing from the rules of Customary international law will be recognised and given effect by English Courts without the need for any specific act adopting those rules into English law.” The passage we will look at in a moment is slightly fuller than that.
So then his Lordship proceeds, “So what is the relevant rule of Customary international law?”, so the…is accepted. That is discussed there and page 98 at letter H and he concludes thus at page 98, letter H, “On the first issue I would hold that Senator Pinochet is entitled to immunity as former Head of State in respect of the crimes alleged against him on well established principles of Customary international law, which principles form part of the common law of England.” So I am simply showing your Lordships that the lawful premise works through, he begins with the assumption Customary international law is directly applicable, he then looks at its conditions and having decided its condition he concludes that that condition is part of the domestic law subject of course – he then goes on to consider in that case the relevant statutory provisions.
LORD PROSSER: So that my unease about the need for a separate dissent of that level and I suppose it makes plain why because if assent was necessary at that level whether he would incorporate it would be by an Act of Parliament.
MR. MOYNIHAN: Yes.
LORD PROSSER: And so the fact you don’t need an Act almost establishes that this is not ipso facto.
MR. MOYNIHAN: Yes and the only thing about any assent is if I can find the crimes bundle and Oppenheim is at letter J I believe.
LORD PROSSER: Oppenheim, it’s now L.
MR. MOYNIHAN: I am obliged. The passage is at page 56 to 57. Perhaps it’s better if I read it. Oppenheim, which was cited by my learned friend and with which I agree at page 56 says this, “As regards the United Kingdom all such rules of Customary international law as are either universally recognised or have at any rate received the assent of this country are per se part of the law of the land. To that extent there is still valid in England the common law doctrine, to which Blackstone gave expression in a striking passage, that the law of nations is part of the law of the land.”
So that in fact my Lords is helpful to stop there because my thought that there might be a principle of Customary international law recognised as such to which we did not assent is obviously a contradiction in terms as dealt with here. If it’s a universally recognised principle it’s automatically incorporated. If it’s not universally recognised and we are aware of a limited number it’s similarly incorporated.
LORD PROSSER: Yes but aren’t there a category of rules of Customary international law which have not been universally recognised and each certain States can as each one exempt themselves there by not assenting.
MR. MOYNIHAN: Yes.
LORD PROSSER: Provided they indicate their non-assent in advance. You can’t get out so under law and it seems a new State are going to be bound by it, if you are around as a State and disassociate yourself before the rule has crystallised then although it is a real customary rule of international law you haven’t assented therefore it won’t be incorporated into your law and moreover it won’t be binding on you in terms of international law.
MR. MOYNIHAN: Well the second proposition in the light of Nuremberg. If the first proposition is correct…
LORD PROSSER: There is a purpose if a rule of international law is forming, there is a purpose in saying no, I say that falls, I mean it was not part of one’s domestic law.
MR. MOYNIHAN: Yes, and in a way what I am trying to adopt is to cover both of Oppenheim, first of all the reference in the ICJ to these principles of humanitarian law having graspable rules would give a foundation for saying that it is a universal rule of international law and incorporated in that way. If your Lordships wish satisfaction that these principles are indeed assented to by the UK to remove that possibility, if your Lordships look to paragraph 22 of the International Court of Justice at page 239. 239 of the copies I gave your Lords yesterday. “The Court notes.” 239, paragraph 22, “The Court notes that the nuclear weapon States appearing before it either accepted, or did not dispute, that their independence to act was indeed restricted by the principles and rules of international law, more particularly humanitarian law (see below, paragraph 86), as did the other States which took part in the proceedings. Hence, the argument concerning the legal conclusions to be drawn from the use of the word “permitted”, and the questions of burden of proof to which it was said to give rise, are without particular significance for the disposition of the issues before the Court.” And that’s in the context of a passage when a Court is considering whether it ought to answer this question. But it records that the UK as one of the nuclear weapon States either accepted or did not dispute that the principles of international law, humanitarian law in particular were applicable.
The judgment bears essentially on humanitarian law and also the principle of neutrality. The UK in a sense need that proposition and my Lords perhaps if I find another reference. If your Lords look at paragraph 79 on page 257, the Court says, “It is undoubtedly because of a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and “elementary considerations of humanity” as the Court put it in its judgment of 9th of April, 1949 in the Corfu Channel case, that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.”
So the Court is alleviating or perhaps not, the Court is declining the pertinent principles to be universally accepted principles of Customary international law and accordingly in corporate it into international law.
LORD PROSSER: That’s still the Hague and Geneva Conventions.
MR. MOYNIHAN: The intransgressibles, one should not inflict unnecessary suffering and in particular one should not accept and inflict unnecessary sufferings on civilians.
Your Lords can see in that passage, line 1 of the Act is factual because the UK does not possess a discriminating weapon. The International Court says in the fourth line of paragraph 78 “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.” I stress never, so there is no question here in certain circumstances, it is never.
My Lords, picking up there and just following this theme I said to your Lords we do not possess discriminating weapons, why is that of concern to note with the nature of Trident, why is that of concern to note? Firstly because of what 78 says, we must never use one that does not discriminate and then paragraph 91 of this judgment. If your Lords turn to that page, 261. 91. “According to one point of view, the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict does not necessarily mean that such recourse is as such prohibited.” In other words they are coming to situations in which use might be permissible. “As one State put it to the Court.” And this is the UK, “Assuming that a State’s use of nuclear weapons meets the requirements of self-defence, it must then be considered whether it conforms to the fundamental principles of the law of armed conflict regulating the conduct of hostilities.”
Still the UK, “The legality of the use of nuclear weapons must therefore be assessed in the light of the applicable principles of international law regarding the use of force and the conduct of hostilities, as is the case with other methods and means of warfare.”
And this is now an application from the US, “The reality…is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties. In some cases, such as the use of a low yield nuclear weapon against warships on the high seas or troops in sparsely populated areas, it is possible to envisage a nuclear attack which caused comparatively few civilian casualties. It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties.”
LORD KIRKWOOD: Is that the US?
MR. MOYNIHAN: That’s the US.
LORD KIRKWOOD: Is that the US vocation?
MR. MOYNIHAN: I’m sorry it’s the UK, the UK and then see also the US.
LORD PROSSER: So all three are passages of the UK?
MR. MOYNIHAN: So there your Lordships see what the UK is saying is – if I may paraphrase paragraph 78 says you must use, never use weapons which will fail to discriminate between the civilian and the military population. You must never do it. Now that is to say would result in the proposition one must never use nuclear weapons, what the UK say you cannot draw that second conclusion and you must never use nuclear weapons, why, because the UK says it is possible that one could have a discriminating weapon, one that would hit only a ship on the high sea or an army in a desert.
The factual evidence here was as I placed it before your Lords before lunch, the UK does not possess such a weapon. And indeed as we will see this is not just a figment of my imagination, the judges were conscious of the fact that there was no evidence that anyone possessed such a weapon. That possibility precluded the Court from answering the general question with a general question. It has to be saying yes but or no but.
The thrust of my submission and nothing more that I say will really add to what I am now about to say, the thrust of my submission is from once we recognise if it be truth that the UK only possesses, only possesses an indiscriminate weapon then proposition No. 1 in my task of legality, the use of Trident 2, the use is unavoidably unlawful. Paragraph 78 of the ICJ Opinion applies. Such a weapon must never be used and that’s both one I have to deal with because we have not used in the sense of dropping such a bomb.
LORD PROSSER: It’s quite interesting the way the two things meet in this area of survival of the State situation because you say looking at the humanitarian principles survival of the State isn’t really the point, these are tight rules, you can’t do this. On the other hand if we start at the other end and think in terms of what might justify extreme use then I suppose survival of the State self-defence is the kind of situation where one might have an exception to general rule, that would be a supreme strategic decision.
The other paragraph was in that supreme and strategic situation the exception which is envisaged is that one might use a small tactical weapon. It doesn’t meet the requirement if you are trying to save the State, it’s by some truly massive hit, to save the State you might be allowed to use a discriminating small weapon, it doesn’t all tie up.
MR. MOYNIHAN: But it does. Your Lordships must read every line of this judgment because I have read it several times with a ruler.
LORD PROSSER: Yes.
MR. MOYNIHAN: I take it as this because this is my understanding of it, first of all we start with the principle of humanitarian law, we also have the principle of self-defence, the State may act in self-defence and if I come to what in my period as an AD I was more familiar with, we all accept that even in self-defence one must act proportionately so there might be a response which is so massive as to be disproportionate as to the effect of self-defence.
LORD PENROSE: But equally a massive retaliation might be measured against a massive attack.
MR. MOYNIHAN: I think what the Court says through this Opinion is the idea of mutual shared destruction which results in an annihilation of the Earth, it’s not one that one would readily accept as the principle of humanitarian law.
LORD PENROSE: I think that’s what I was getting at. That instead of considering whether there were exceptions in the field of self-defence it may be that what one would have to be considering is whether there were exceptions to the rules of humanitarian law and what you are saying is no-one has suggested that. Never means never.
MR. MOYNIHAN: Never means never and as intransgressible sounds pretty close to never…
LORD PROSSER: But it might not be irrational to say these are the rules of humanitarian law, they are universally intransgressible but there is one at the other end of the road, there is one exception as an exception to humanitarian law. Now I can understand such a stricture, I think. That there is a point which you are so far at the end of the road that that’s not something that’s happened and you say it’s a never one.
MR. MOYNIHAN: It’s a never one.
LORD PROSSER: That’s a wheeze.
MR. MOYNIHAN: The reason why we are not at the end of the road is the direct that’s going on in paragraph 91, I make no defence for this, is the UK said you can’t say we can never use nuclear weapons because we might yet come up with a small bomb, one that would hit only a ship in the sea or an army in the desert. The significance of hitting only the army in the desert is that one acts consistently with humanitarian law or at least that part of it which says you must never hit civilians. Clearly this question about causing unnecessary suffering. It at least meets that so one can see why the hypothetical possibility of the discriminating weapon here breaks the intransgressible humanitarian rule.
LORD PROSSER: Consistently?
MR. MOYNIHAN: Evades, it’s a hypothetical possibility.
LORD PROSSER: One can understand the theory was in the order of self-defence there and be something which met the justification requirements of self-defence and also met the humanitarian requirement.
MR. MOYNIHAN: That’s true.
LORD PROSSER: But no-one suggests it should make an inroad into this humanitarian requirement.
MR. MOYNIHAN; And that’s why when one analyses this judgment one says at its core, the principles which can be directly applied when one first discovers the nature of Trident 2, and your Lordships did and in a sense with my introduction your Lordships did this morning, before I conclude with it this morning with me after an exchange about whether issues or reliability of evidence might arise.
Can I take your Lordships to paragraph 94 of the Court’s opinion to demonstrate to your Lords that the evidence given on behalf of the Respondents about the absence of such a discriminating weapon is sufficiently reliable that your Lordships can accept it. Paragraph 94, “The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the “clean” use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view.”
In other words the Court is saying until we know more about these low yield weapons we can’t rely on the UK paragraph 91 argument.
If I take your Lordships to paragraph 97 and then I will come back. Paragraph 97. “Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal”, the limited elements of facts relates back to what’s just been said in 94 about this hypothetical possibility about the discriminating weapon.
“The Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.” So it’s linked into that. In other words there is this unresearched marginal possibility.
LORD PROSSER: I can see the parenthesis that people are saying that in exchange we made something that wouldn’t otherwise be allowed but when you boil it down as long as the humanitarian rules stand they are fighting to get something that wouldn’t be sufficient anyway. They are tactical weapons which wouldn’t – on first sight are not really what they are for, they are wanting something which can really be done on the scale of huge conflict.
MR. MOYNIHAN: Perhaps it’s fitting from a single perspective it brings into focus what is meant by the survival of the State. The survival of the State doesn’t mean the survival of those in this Court, what it means is the survival of the political structures surrounding us.
LORD PROSSER: That’s what I thought.
MR. MOYNIHAN: It’s perhaps that and all that humanitarian law is saying is…
LORD PROSSER: There are more important things than that.
MR. MOYNIHAN: The more important things, I heartily said something disparaging when a very senior politician was in Court, there are more important things than survival of the politicians.
LORD PROSSER: Keep facing this way Mr. Moynihan.
LORD PENROSE: Does that mean that the ICJ are envisaging the possibility there are certain positions politicians would justify the use of nuclear weapons?
MR. MOYNIHAN: Would justify a prevalent use of nuclear weapons.
LORD PENROSE: Any use?
MR. MOYNIHAN: Yes but the question is how high one puts the proportion.
LORD PENROSE: It depends how high one puts the politician!
LORD PROSSER: It’s the structures and that is something quite extreme.
MR. MOYNIHAN: Again if I extend matters, again I am conscious of the enormity of the subject, the point that I am seeking to get to is that the views in these opinions, the reason why we have fourteen opinions of the judges relates to these marginal issues. In other words can they say in every circumstance any use of any nuclear weapon is unlawful. What they are trying to bring your Lordships back to is we are in it on the margins, we are at a course in the centre.
LORD PROSSER: I appreciate that but surely where one is trying to identify a rule of international law it has to be clear and that matters, it has to be clear as its defining edges and if those are unclear it may mean that there is no rule even although everyone would agree that in the heartlands there could be a rule, it’s a question whether you have defined a boundary, what you call a margin, and that’s a problem that remains. Isn’t it?
MR. MOYNIHAN: No my Lord, with respect, because there is a distinction to be drawn between the context of the rule and its application to the facts. The content of the rule is clear, that’s what paragraph 78 tells us, 78 and 79. The content of the rule is clear, the principle of humanitarian law is you should never use a weapon that fails to discriminate. What arises at the margins I suggest is its application to the fact and in particular its conflict with the principle of self-defence. So I do maintain the distinction between the content of the rule and its application at the margins and I can do no better than 2.
I have already read to your Lords in 78, intransgressible, in 79. 91 introduced this theoretical possibility of a discriminating weapon. 92, after that view of the UK there might be an indiscriminating weapon. 92, the Court gives a more detailing proposition. “Another view holds that recourse to nuclear weapons could never be compatible with the principles and rules of humanitarian law and is therefore prohibited.” And that must mean any nuclear weapon, any, whatever its size. So the Court is now facing up to the conflicting propositions.
The UK is saying you might get one so small and they are saying no, never. “Like the principles and rules of humanitarian law, that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territory of the contending States.” The principle neutrality we are dealing in, send your atoms across the border as much as you can’t send your soldiers.
94, “The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the “clean” use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view.”
95, “Nor can the Court make a determination on the validity of the view that the recourse to nuclear weapons would be illegal in any circumstance owing to their inherent and total incompatibility with the law applicable in armed conflict. Certainly, as the Court has already indicated, the principles and rules of law applicable in armed conflict – at the heart of which is the overriding consideration of humanity – make the conduct of armed hostilities subject to a number of strict requirements. Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited.” Are prohibited. “in view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements. Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.”
Now my Lords, again that last sentence might, read in isolation, begin to say that it does doubt the use in some circumstances of any weapon. In my respectful submission it is clear from what is appreciated of all that that what has resulted in the element of doubt is paragraph 91, the possibility of this discriminating weapon. We do not have such a discriminating weapon.
LORD PENROSE: The problem about stopping at that last sentence and trying to make that measurable because they go on to vary later and then they say nor can we avoid the deterrence. And in 97 they say, “Accordingly in view of the present state of international law viewed as a whole.” So it’s not perhaps as easy to isolate paragraph 94 and 95 as you have done and ignore the build-up to the conclusion.
MR. MOYNIHAN: What I have done by going towards the end is left out the part if self-defence is itself subject to the humanitarian principles.
LORD PROSSER: The self-defence one is still in the field of what is called a fundamental right of every State to survive. That almost sounds intransgressible.
MR. MOYNIHAN: No. The reason why I say no is the survival of the State is not a separate concept, it is part of self-defence as it’s seen there. It’s right to resort to self-defence in accordance with Article 51 of the Charter when its survival is at stake, it’s self-defence in the most extreme situation.
LORD PROSSER: I follow that but it’s not expressed that way in paragraph 90. It’s something called a fundamental right of every State to survival and that might not be an issue of self-defence.
MR. MOYNIHAN: What I’m getting at, I accept my Lord’s paradox. If one looks at paragraph 95, 96 and 97 and also to Lord Penrose and if one looks at that as saying, well we have got some doubt as to whether we are in fact able to neutral destruction of the earth for survival of the State. That would undermine the universality of the language in 78. 79 and 94 and 95.
LORD PENROSE: Mr. Moynihan, the neutral destruction of all the Earth is not acceptable by all the States. But you are making as if open to extreme…
MR. MOYNIHAN: Well I accept that my Lord there are many intervening stages between blowing up the Earth and having the normal combination of war. What I am seeking to do and I really can do no more than this because I have accepted my Lords’ need to read this judgment line by line. What I am seeking to persuade your Lordships of is this, that when in paragraph 78 the Court said a State must never use a weapon which fails to distinguish between civilians and combatants it meant that, it has never detracted from that.
LORD PROSSER: It comes back to the final finding E if you are right, because of the humanitarian rule, the only exception is in the case of discriminating weapons, I don’t see why one ever talks about the survival self-defence situation because discriminating weapons would – whether one had hit the buffers of survival and self-defence they would be all right and consistent with the rules of humanitarian law anyway.
MR. MOYNIHAN: But the point about that, I did mention that passed beyond because we are talking about civilians and combatant principles in 78 is that one part of humanitarian law is not just to preserve civilians, one must not impose unnecessary suffering on combatants.
One of the arguments is even a small bomb will inflict necessary suffering on combatants.
LORD PROSSER: Civilians, don’t touch them.
MR. MOYNIHAN: Never.
LORD PROSSER: But in necessary you say that yes, there could be situations in which they were offensive, they would be circumstantial, would they?
MR. MOYNIHAN: One knows of Easter Island and various other things. What it comes to is there is a sense in which one can reconcile what, on the face of it, are conflicting propositions, paragraph 78 saying never, with 97 saying, we don’t know and propositions saying generally but we don’t know. How does one reconcile them, what I say and this is my submission to your Lords, and it’s my fourth proposition relating to the ICJ Opinion and perhaps if I could ask your Lords to look to page 2 of that argument in writing.
This is the way that I suggest that these propositions are reconciled. There was a reservation about the possible legality about the threat or use of nuclear weapons in self-defence where the survival of the State was at stake. But that I say is subject to two propositions, first of all the threat or use of nuclear weapons would be unlawful in other circumstances, even in those circumstances if any weapon can lawfully be used it is only a weapon of discriminating scale. If your Lordships accept those propositions then one can reconcile 97 and 78 and one can reconcile in the use of weapons against civilians and the reservation about the possible use of weapons when the survival of the State is at issue.
LORD PROSSER: I am sorry you are talking there about what was going to be a very structured argument. It is very important that I follow things.
MR. MOYNIHAN: Your Lordships have had because in fact whatever the structure I would have come to this, in reality that is the submission. The structure we have within it without necessary stepping stones, stepping stones are neither here nor there, the main points to persuade your Lords is that when in 78 the Court says never, it means never, when in 79 it says intransgressible, it means intransgressible.
And then when one tries to understand how did the Court get into the problem where at 105, 2E it was unable to answer the question quite so comprehensibly, one recognises that paragraph 91 is the block of everything, it’s the possibility of these discriminating weapons that blocked the Court from giving the answer. That is removed on the evidence in this case and there is no surprise in this that the UK does not possess such a block on the argument, it does not possess a discriminating weapon and therefore whatever the rights of the UK might be, whatever they might be to devise some discriminating weapon in the future that must not relate to the lawfulness of the use of Trident 2.
That use in the next stage of the argument is threat of use. The use…
LORD PROSSER: I suppose in any way the Customary international law even if the intransgressible humanitarian are in the laws of the Medes and Persians, they could change.
MR. MOYNIHAN: Oh yes.
LORD PROSSER: If it appeared to the civilised world that these were no longer seen as reasonable then somewhere one would change international law.
MR. MOYNIHAN: My Lords, there is the passage I still haven’t found yet in Judge Ferrari Bravo’s second Opinion, the one that’s ambiguous and constituted as if Customary international law will change in the future. It will change in the direction of limiting the threat of nuclear weapons.
LORD PROSSER: I am just trying to work out if we could change it the other way and that would change by a practice of breaching it.
MR. MOYNIHAN: Well…
LORD PROSSER: Well how else?
MR. MOYNIHAN: Well I am at the level of yes I am dumbstruck, given the UK has agreed in good faith to the limitation of such weapons.
LORD PROSSER: There must be ways of drawing back of what has become the practice.
MR. MOYNIHAN: This is where Lord Denning, in one of his more lawful defence cases decided what was incorporated…(inaudible). Judge Bedjaoui anticipates that variation of Customary international law applied to nuclear weapons will go in only one direction. In a sense that’s also neither here nor there because what I am seeking to persuade your Lordships is looking to the nature and quality of Trident 2 its use is unlawful, never means never. What I want from that is because we are not in this case concerned with use we are in this case concerned with threat, what do your Lordships, or are your Lordships to make of threat?
What I argue to your Lordships is Propositions 5 and 6 of my note of argument.
LORD PROSSER: Of the one you gave today?
MR. MOYNIHAN: No, no, the script I am using today. More particularly 5, 5 and 6. I think I should persuade your Lordships on a close analysis of paragraphs 46 and 48 is first of all one asks, would the use of a particular weapon be unlawful, would the use of that weapon be unlawful. If the use of that weapon would be unlawful then the threat of use is similarly unlawful and again in mundane domestic matters one knows to use a sawn-off shotgun would be unlawful, similarly the threatening to use such a weapon would be unlawful.
LORD PROSSER: In quite limited circumstances.
MR. MOYNIHAN: In quite limited circumstances. If you will, what I want to persuade the Court is if it would be unlawful to use the weapon, if it would be unlawful to use the weapon it’s similarly unlawful to threaten to use it, to equate the two situations and there is a second unsupported proposition in this which is important also. The Court says something of deterrence and this boundary between what I term mere possession and threat.
There is only one point on which all of Miss Zelter has said in her note of argument and her statement, there is only one point in which I differ from her and I would feel constrained from that because it’s in her interest to submit this.
My Lords in the Chair asked Miss Zelter whether 47 and 48 was the International Court meaning the argument of parties or reaching its own conclusion. I submit that 47 and 48 is the Court expressing its own conclusions.
LORD PROSSER: That’s what I thought when I first read it and then I thought…
MR. MOYNIHAN: Now my Lords it is a significant matter.
LORD PROSSER: Yes.
MR. MOYNIHAN: If I draw your Lordships back to paragraph 46. One can see in my respectful submission that 47 and 48 deal with conclusions drawn by the Court judges. 46 says, “Certain States asserted that the use of nuclear weapons in the conduct of reprisals would be lawful. The Court does not have, in this context, the question of armed reprisals in time of peace, which are considered to be unlawful. To pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defence be governed inter alia the principle of proportionality.”
My Lords, that’s as convenient a way of answering the point. Self-defence is subject to proportionality, that’s the piece I missed out. But what I am seeking to suggest to your Lordships is that the second sentence tells us that the Court is in Court mode rather than repeating the argument and I submit 47 and 48 continues with the Court in Court mode expressing its own conclusions and it is not merely representing the argument of parties.
“In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence. Whether a signalled intention to use force if certain events occur is or is not a ’threat’ within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of ’threat’ and ’use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State – whether or not it defended the policy of deterrence suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.”
So in other words the use of force, the use of the threat added together…
LORD PROSSER: I wish I were confident that many of the Courts had served as AD considered throughout in more mundane situations. Because we are talking about Article 2, paragraph 4 of the Charter of the United Nations.
MR. MOYNIHAN Yes.
LORD PROSSER: That is that they shall restrain from the threat of territory and political independence of any State or in any manner consistent with the purpose. You have really got to look both at the context in which it appears in that Article and the whole interrelation of the whole order of immediacy.
MR. MOYNIHAN: But I don’t…
LORD PROSSER: They don’t, as I recall, I mean they assert the kind of recuperation because the two are conjoined in Article 4.
MR. MOYNIHAN: Bearing in mind – what I am coming to in all of this, I came to it with the – I was given the passage of Professor Boyle, the Depute underpinning this is the nuclear States are saying, well we see what you are saying about the use of weapons. We naturally accept the use of weapons are subject to humanitarian law, we don’t accept that the same principles apply to the threat of use and our whole deterrent policy is built on threat and it’s not use. What the Court is saying, no that is not correct, to threaten use is as much unlawful as the use. If the use of the weapon would be unlawful.
LORD PROSSER: And surely if we are talking about Article 2, paragraph 4.
MR. MOYNIHAN: Yes.
LORD PROSSER: Where the threat or use is against the territorial integrity of the independence of the State…
MR. MOYNIHAN: If I carry on your Lordships through to 48 stands with 47.
LORD PROSSER: Yes.
MR. MOYNIHAN: 47. Perhaps if I could flag to something which relates to the nature of the word “threat” which is quite telling in this case. In the fifth last line of 47 the Court uses the word, “The declared readiness of a State to use force”, it’s the substitute of the word “threat” to “declared readiness”, that brings us to this dropped area to which they turn in 48.
Now my Lords, again I can assume from Lord Penrose’s reaction I take as one of my essential factual propositions that the UK has in fact threatened.
LORD PENROSE: Mr. Moynihan, with the greatest respect at the moment we are looking at the ICJ that could not have had the contemplated facts. What we are trying to find out is what the ICJ meant, it doesn’t really help to try to clarify or explain the method by reference to Trident.
MR. MOYNIHAN: But what we do know he was arriving at this decision in or in the knowledge of what had occurred in Iraq. And when we look at 48 I suggest the Court does come to deal with the matter that was occurring in Iraq, the prepared readiness to use because it says, “Some States put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force.” This is the dawn situation in our Courts. “Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a ’threat’.” So again open quotation, “Whether this is a ’threat’ contrary to Article 2, paragraph 4, depends upon whether the particular use envisaged would be directed against the territorial integrity or political independence of a State, or against the purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter.”
So what the Court is saying, again this is a short note, if a use of the weapon, use and I mean actually dropping and exploding would necessarily violate the principles of necessity and proportionality. It’s the third and fourth last lines of that, if its use would necessarily violate necessity and proportionality then to threaten its use is illegal, unlawful to threaten and what do we mean by threat? To signal preparedness to use.
LORD PROSSER: I see what it’s saying but I am just mystified by when you start with a word of ordinary use and understanding threat and then transpose and transfer in the language of signal and preparedness. It doesn’t seem to me that in ordinary language a general statement of preparedness to use something is anywhere close to what one would call a threat and still less of a threat that one could equate with use. I am completely lost with the generalities that they express here because it seems to me it’s a world of a very number of separate questions.
I can understand that equilibrate threat with use if use is imminent and practicable and specific and if it is plain that the threat is as specific as actual use but I am very dubious about the equilibration they seem to envisage. The boundaries of the threat cease to coincide with the boundaries of use.
MR. MOYNIHAN My Lord perhaps if I can put it this way. We have come in the course of this argument in the last 3 days to use the domestic analogies significant for shotguns. This is on a thinking of a completely different plane. We have come to speak to domestic examples significant for shotguns on the street. This is operating on a higher plane, international level.
LORD PROSSER: On a vaguer plane, I don’t know.
MR. MOYNIHAN: What we also know is that some States, nuclear-powered States, have these weapons and as we see in the context of what’s being done in Iraq and what we have seen from Professor Rogers is then saying, oh by the way we have sent a submarine to Gibraltar today, and we in this Court would seriously – we in this Court could debate quite anxiously what’s the interpretation of that?
LORD PROSSER: That goes on at domestic level too, the common course I will tell my big brother, this is not a distinction.
MR. MOYNIHAN: With respect my Lord, so far as this case is concerned this is the – it’s not looking at the opinion of the individual judges it is the opinion of the Court in relation to the matter which was asked, namely at what stage does a deterrence policy move into the realms of breach of Article 2, paragraph 4 of the United Nations Charter? The conclusion that it reached it may come back to the one point left to be addressed to my Lord in the Chair at the end of this argument, what authority do your Lordships have to this opinion.
The view that is quite plainly set for the Court in 48, whatever we might think about it obviously they hotly debated it, whatever we might think about it, the view was expressed in advice to the United Nations that a threat can be equated with a declared readiness to use.
LORD PENROSE: A declared readiness to use may be a threat?
MR. MOYNIHAN: Yes.
LORD KIRKWOOD: That word readiness does strike me as a hugely ambiguous word. Do you know what the French was? It’s not the same as willingness or intended readiness, I don’t know.
MR. MOYNIHAN: My Lords, if I pass your Lordships the book on one side of the page. The two pages, the French and English, one side of the page is English and the other side is French.
LORD KIRKWOOD: It probably won’t help. Where does it occur in the English version?
MR. MOYNIHAN: It’s the penultimate sentence in 47. The first use of it in paragraph 47, the fifth line up from the bottom of 47.
LORD KIRKWOOD: Yes.
LORD PENROSE: So they are saying, I have got my finger on the trigger.
LORD PROSSER: I am ready to, which is better than the abstract word.
MR. MOYNIHAN: My Lords, having used the ruler I have been very careful to prepare the ground on which I fight and your Lordships now will realise why in the sense…
LORD PROSSER: Yes Mr. Moynihan.
MR. MOYNIHAN: I am just trying to discover where I was. What I said to your Lordships was I think, and I make no apology in deliberately defining the ground on which I stand. Your Lordships will realise why again taking up this point of debating at the margins what is meant by threat, at what stage do we pass into preparedness? At what stage do we have the finger on the trigger? I have chosen not to stand on that ground, I have chosen to stand on the secure ground of the second factual hypothesis, the UK has threatened the use of nuclear weapons against specific States.
It has done so in diplomatic language and otherwise used language in diplomatic circles open to interpretation and again this is yet another example why in all I have said to your Lordships I began by acknowledging if one goes to the margin it is very difficult to understand what the impact of this judgment is.
I am seeking to persuade your Lordships on the facts led at this trial that it is in at the margins and I really do conclude at this point the three points that I move myself back from the boundaries of the margin is here was evidence to suggest that the UK policy is not predicated on the survival of the State and it’s for that reason my Lords that I would say to your Lordships that if we close our minds to, or if one is conscious of the time in reading this judgment of the marginal issues I assumed them all for your Lordships, the marginal issues are the possibility of a discriminating scale of weapon. The second marginal issue is mere possession and the third marginal issue is survival of the State.
If one reads these paragraphs of the Court’s opinion, contents of these three marginal issues one sees why they ultimately reached an inconclusive decision. When one reads the judgment with close marginal issues in mind one will not lose sight of the fact of the way through all interactive issues of the margins if presented with my factual matrix that the UK does not have discriminating weapons, has threatened to use them against individual States and it has threatened that use not for the purpose of preserving the survival of the State your Lordships might then be satisfied that the answer that could effectively be given is never.
You can never do that and accordingly by the principles of Customary international law your Lordships can be satisfied that on that matrix such a matrix is unlawful.
LORD PENROSE: Your proposition, version, they once made a threat thereafter there could be no defence.
MR. MOYNIHAN: My Lord, we are moving on to the question of the question of defence of necessity.
LORD PENROSE: It is.
MR. MOYNIHAN The policy of the United Kingdom because it has entailed the threat of use and a policy…
LORD PROSSER: If someone has in the past made a threat once to use a weapon of this kind and thereafter retain it and double it without any further threats…
MR. MOYNIHAN: What I would say in relation to that one can say is using the original formulation of question 12, the UK policy. Sorry, it’s the way I am looking at it.
LORD PROSSER: If you set your policy generally, if you have threatened Iraq with the Gibraltar case and then the years pass and you never do it again, I suppose it’s a matter of whether at any given moment that you can inform that what they are doing constitutes a state of readiness or signals a readiness at the new date.
MR. MOYNIHAN: What I would say in answer to that is that the policy of the UK which is to threaten, in your words, in failing to possess such weapons but to threaten the use of it when it sees fit to protect what is perceived to be its vital interests which are less than a survival State such a policy is unlawful.
LORD PROSSER: One can see the generalised if it amounts to a threat or if it is proportional. The question that will arise, was it pre-date use is when it happens. You have always got to ask when are we talking about.
MR. MOYNIHAN: Again I am happy that by coincidence I have chosen to define a ground to stand upon which is that these events of the 9th of June – these events were taking place against a background of events in Kosovo and I cannot be definite about the timings. There was evidence from Professor Rogers of what had been said in the Daily Telegraph about the ship having – a vessel having left Faslane earlier this year in connection with the Kosovo crisis. Again that was a matter directly to not so much Yugoslavia but to prevent Russia from intervening.
These events were occurring at a time, and my original note of argument of great international unrest. In other words occurring at a time when, and this is to use this method of pushing the boat out pretty far, at a time when it would be open to conclude on the evidence that there was an outstanding threat by the UK to use these weapons directly to Russia. I flag up to your Lordships this is another one of these factual matters to which your Lordships may feel uneasy about, in which event it’s obviously a very bold broad question.
LORD PROSSER: You have said that looking to the particular circumstances of what could be done you can tell that this is unlawful as long as it’s not an argument and so on. Nonetheless if there is a rule of Customary international law it is not expressed in terms of Trident and Britain and certainly is an illustration. One likes to know what the rule is before seeing whether it’s breached even if starting at the other end so this is obviously breach whatever the rule is. Can you tell me what the rule is that is breached?
MR. MOYNIHAN: Paragraph 78 is the only description I can give to the Court itself which defends the principles of humanitarian law which has within it the flexible terms of proportionality.
LORD PROSSER: So rather than what is said in E, 105E.
MR. MOYNIHAN: That is correct. Because if I can trace 105E. 105E.
LORD PENROSE: Before we leave that what do you make of paragraph 96, “Nor can it ignore the practice referred to as ’policy of deterrence’,” to which it’s said, “Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality” and so on.
MR. MOYNIHAN: I read that in the light of what was said in paragraph 48 which addresses the – and takes several steps. Does it amount to deterrence to use and does it necessarily involve a method of such scale that it would give it discriminate or disproportionate…
LORD PENROSE: But having narrated that the Court says that the Court cannot ignore the threat referred to…(inaudible)…and in the light of that it cannot reach the conclusion. What are you saying?
MR. MOYNIHAN: Well I can do no better than I have already done in paragraph 4 of my note of argument for today and suggest to your Lordships that unless we read the conclusions with this opinion closely, reasoned as it is is internally contradictory. One reconciles 47 and 48. I will do the full list, 47, 48, 78, 79, 94 and 95, one reconciles those 6, 47, 48, 78, 79, 94 and 95, one reconciles those 6 with paragraph 97 which enters the doubt. One reconciles them as I have done in paragraph 4 of today’s argument. By saying that the doubt remains in relation to the use of a discriminating scale of weapons in circumstances of self-defence where the survival of the State is in issue.
LORD PENROSE: 96 is the one I asked.
LORD PROSSER: 96, paragraph 2 doesn’t read through the – or accordingly to what falls in 97 because the second part of 96 is all about the policy of deterrence which as it discerns is about the express reservations to things like Rarotonga and the express declarations made in the Tlatelolco Treaty.
Now these I recall they are not just survival of the State or tactical weapon installations, are they? Was that the passage, most of 96 doesn’t seem to get backed up in 97, does it?
MR. MOYNIHAN: In answer to that as I have said to my Lords in the passing, when one looks at paragraph 47 one sees to summarise in paragraph 47 that self-defence is itself subject to the principle of proportionality.
LORD PROSSER: Oh no, but at 96, 97 one is hoping for some kind of denomination. This where you hope to get unknotted and it seems to get in what we Scots call a fankle.
MR. MOYNIHAN: The fankle comes in by the UK at paragraph 91.
LORD PENROSE: It might come in for the reasons Judge Higgins uses, the Court hadn’t applied its mind to the material it had before it.
MR. MOYNIHAN: I appreciate Judge Higgins says that and I don’t depart from that. Even Judge Higgins says – if one looks at Judge Higgins, it’s 588. Our problem is at paragraph 24 of 588 and 589, the second line of 589, “Notwithstanding the unique and profoundly destructive characteristics of all nuclear weapons, that very term covers a variety of weapons which are not monolithic in all their effects. To the extent that a specific nuclear weapon would be incapable of this distinction, its use would be unlawful.”
Even she says that if a weapon is incapable of discriminating between military and civilian targets it would be unlawful. 24 begins with “A weapon be capable of differentiating between military and civilian targets is not a general principle of humanitarian law specified in the 1899, 1907 or 1949 law, but flows from the basic rule that civilians may not be the target of attack. There has been considerable debate, as yet unresolved, as to whether this principle refers to weapons which, because of the way they are commonly used, strike civilians and combatants indiscriminately or whether it refers to whether a weapon, ’having regard to (its) effects in time and space’ can ’be employed with sufficient or with predictable accuracy against the chosen target’”.
She refers to some references, “For this concept to have a separate existence, distinct from that of collateral harm (with which it overlaps to an extent), and whichever interpretation of the term is chosen, it may be concluded that a weapon will be unlawful per se if it is incapable of being targeted at a military objective only, even if collateral harm occurs.”
So what I have chosen to define as my core factual matrix, even the dissenting Judge Higgins agreed she puts her finger on I say where the spanner was thrown in the works.
LORD PROSSER: And in the next paragraph she puts her fist through the whole thing.
MR. MOYNIHAN: Having got that spanner in the worths it’s not helpful, it results in us speaking for one or two weeks on the generality. That paragraph puts the finger on the pulse, paragraph 91 in the opinion in the works and it does not arise on the facts in this case. It does not arise.
So my Lords, for that reason having defined the ground on which I stand there is not much point in going into the rest of the individual opinions, they are there for your Lordships. Judge Bedjaoui is in a sense only produced to show what he is saying is caught up, we can’t give an answer. All he is saying is it didn’t read generally unlawful to me, the aspects are lawful. What he says is generally unlawful means generally unlawful, as for the rest of the margins we don’t know. We don’t know for the factual materials whose margins remain in doubt unlawful, the margins remain in doubt. I am content to take it that even in relation to a dissenting Judge Higgins I can point to paragraph 24 as showing if she were to meet me on my defined ground she would say yes that is unlawful and it was for that reason that she was brought to Court.
What differs, Judge Schwebel is concerned. Perhaps if I can mention to your Lordships the passage I have been spending so much time referring to. Perhaps if I take your Lordships to 320. I am not going to read any of this. I am simply going to identify for your Lordships.
At 320 we have him discussing this spanner, the idea of a small discriminating weapon. So he discusses that in 320, he has I have said to your Lordships is not in favour at 322, if I turn to that. He is not in favour of the survival of the State as being the only circumstances at which weapons can be used or threatened and at 323 he says just above the words, “desert storm”, “Moreover, far from justifying the Court’s inconclusiveness, contemporary events rather demonstrate the legality of the threat or use of nuclear weapons in extraordinary circumstances.”
He then sets out at 323 to 327 the full detail of what he has gathered about the use of or the threats made by America. It’s America I think that he is discussing, there is no mention of the UK. He then concludes at 327, “Thus there is on record remarkable evidence indicating that an aggressor was or may have been deterred from using outlawed weapons of mass destruction against the forces and countries arrayed against its aggression at the call of the United Nations by what the aggressor perceived to be a threat to use nuclear weapons against it should it first use weapons of mass destruction against the forces of the coalition.
Can it seriously be maintained that Mr. Baker’s calculated – and apparently successful – threat was unlawful? Surely the principles of the United Nations Charter were sustained rather than transgressed by the threat. “Desert Storm” and the resolutions of the Security Council that preceded and followed it may represent the greatest achievement of the principles of collective security since the founding of the League of Nations.”
And on the subject there, what I have produced Judge Schwebel for – and he is again a dissenting. Why have I produced him, he would accept in my respectful submission that what occurred in the context of desert storm this diplomatic language being used can properly be described as a threat of international law.
LORD PROSSER: For him it’s not an unlawful threat but it’s a threat nonetheless.
MR. MOYNIHAN: And I would indicate to your Lordships at page 314, I said to your Lordships that Judge Schwebel best defines this pointed to subconscious that he is dissenting and it makes my Lord’s in the Chair’s point. He says at 314 about the middle of the page what is the practice, and he is dealing with the nuclear non-proliferation treaty. “What does the practice of such possession of nuclear weapons thus import? Nuclear powers do not possess nuclear arms to no possible purpose. They develop and maintain them at vast expense: they deploy them in their delivery vehicles: and they made and make known their willingness to use them in certain circumstances. They pursue a policy of deterrence, on which the world was on notice when the NPT was concluded and is on notice today. The policy of the deterrence differs from that of the threat to use nuclear weapons by its generality. But if a threat of possible use did not inhere in deterrence, deterrence would not deter. If possession by the five nuclear powers is lawful until the achievement of nuclear disarmament; if possession is the better part of deterrent; if deterrence is the better part of threat, then it follows that the practice of State – including their treaty practice – does not absolutely debar the threat or use of nuclear weapons.”
So bear in mind he is in favour of the threat of use. It’s rather difficult to make sense of that series of clauses all built into one sentence, it’s almost…
LORD PROSSER: It verges on the rhetorical.
MR. MOYNIHAN: It’s difficult to know but what I say to your Lordships again is showing the definition of the ground on which I have chosen to stand even he would accept my factual proposition No. 2 is correct. The submarines being moved to Gibraltar out of Faslane with sort of diplomatic language being used even he understands that as a threat despite the obvious question.
So Judge Higgins in relation to my core position of dissent would agree, Judge Schwebel in relation to the nature of threat I would respectfully submit would agree and it’s all intended to demonstrate to your Lordships that I would conclude or move to put it to conclude this chapter and I would conclude by adding this your Lords, that if your Lords put to the Court that I define by my three facts if your Lordships can be satisfied on any proper reading of the International Court of Justice decision that the government policy in relation to Trident 2 is unlawful by the principles of Customary international law and the UK has dissented.
That would conclude the first part of what I said to your Lords would be three stages. The next stage of the argument, Stage 2, which I can be very brief, I can deal with in the remaining few minutes of today. Assuming that Trident is unlawful and I will say Trident is unlawful and it has all these facts built into it, assuming Trident is unlawful, the second part of the question was how does that become translated in the municipal law and what possible relevance does that have to defence of necessity and its necessity I will come to as my next main chapter.
I dealt with this in reality at
2 o’ clock and I took your Lordships to the Pinochet case and I believe it was to Lord Lloyd of Berwick in the first page, at page 90 and 98. At page 90E and 98H. If your Lordships are persuaded as the International Court of Justice has said that the unlawfulness flows from the international customary law that Customary international law is automatically incorporated into municipal law. What bearing does that have on the defence of necessity and I will come to the contents of the defence of necessity with your Lordships’ leave tomorrow. What bearing does that have?
It’s very simply and it’s this, the defence of necessity can arise in a couple of situations. What we have here is three women who are saying, we committed malicious damage, and for the moment I will say they committed a crime, they say, we committed a crime in order to avoid or to prevent an illegal act.
Now there are two slants to that equation, first of all in general the question of necessity is that in effect – but as a prerequisite to that defence they must show that what they sought to prevent was an illegal act. What I say is the significant – this is the link, the illegal act is Trident by Customary international law incorporated into municipal law we would recognise as a covenant of municipal Scots Law as an illegal act.
LORD PROSSER: Certainly in the Sheriff Court it seemed to me that the words “illegal” and “unlawful” were very widely used without any real indication of whether they meant at international law or at domestic law or whether indeed they meant a crime. But you mean crime?
MR. MOYNIHAN: Yes.
LORD PROSSER: You do, you say to prevent an illegal act, prevent a crime?
MR. MOYNIHAN: No. What I say…
LORD PROSSER: What kind of illegal act are you talking about?
MR. MOYNIHAN: An illegal act which is an unlawful crime.
LORD PROSSER: Is it or is it not a crime?
MR. MOYNIHAN: It is a crime.
LORD PROSSER: Why don’t you say to prevent a crime. Other things can be considered illegal. We are talking about a crime.
MR. MOYNIHAN: Yes. Now my Lords, that is the link, in a sense it’s a pre-requisite to this type of defence that what the ladies were seeking to do was to prevent a crime and their position is accordingly to be contrasted in that respect in those protestors or the likes who oppose bypasses, road protestors, if the road has all the statutory permission other in complaining about we would regard in any sense an illegal act.
LORD PROSSER: It raises all those issues about when does ones right to freedom of expression absorb activities like obstruction and so on, but you say that’s not your concern.
MR. MOYNIHAN: No, that’s the case of Steel and I would not support your Lordships in relation to that.
LORD PROSSER: I remember reading an article in a French newspaper the other day when in French law is it illegal to act illegally and the answer it was.
MR. MOYNIHAN: I think the joke follows when is civil unrest successful, is when it’s usually done in France.
LORD PROSSER: You are using the act civil order of whatever ways up a crime is when it’s done to prevent a crime.
MR. MOYNIHAN: Yes.
LORD PROSSER: And that is done with freedom of expression.
MR. MOYNIHAN: And when my learned friend Mr. Di Rollo said the International Court of Justice opinion doesn’t tell us when citizens can intervene he is correct, what tells us when citizens can intervene are the proper limits of the defence of necessity, I am choosing to use that expression and I will explain to your Lordships why.
LORD PROSSER: I think in the Court below the distinction was perhaps drawn with necessity as to our own law and what might be seen as a separate rule of international law telling the one on the one hand rather than in preventing a crime you say it’s not a separate matter it’s the law of necessity.
MR. MOYNIHAN: It’s the law of necessity and the link is the international law is essential to prove the constituent element namely that these women were acting to prevent an illegal act. It’s illegal by Customary international law, it is a part of municipal law, it is illegal, it is a crime of municipal law and that then takes us to my third docket and last docket which is what are the proper crimes.
Well to what circumstances and to what extent can a specific act to prevent – can a citizen actually carry out what might otherwise be regarded as a crime in order to prevent a greater crime being committed by another.
LORD KIRKWOOD: When you are talking about the crime, this is to prevent a crime? It’s not to prevent the crime being committed in the future which hasn’t been committed yet, are you talking about a continuing crime?
MR. MOYNIHAN: Yes my Lord. It is a continuing breach of international law being committed by the UK.
LORD PROSSER: So the basic rules about necessity would be about preventing a crime which you are saying to continue with a crime is a crime.
MR. MOYNIHAN: Yes, so as this government – looking to the principles of Nuremberg paragraph…
LORD PROSSER: We will come to that separately but it is clear we will be depending on our ordinary rules regarding necessity. International law doesn’t tell us anything about what it is that justifies intervention to prevent a crime.
MR. MOYNIHAN: No. I am not – again my Lord for reasons that are best for me I leave it to others to what extent this can be done. I am not preparing to argue that Nuremberg – I am not preparing an argument that says Nuremberg principles can override domestic law. That’s not the argument I was preparing.
LORD PROSSER: I think those are mostly in order to establish individual liabilities of participants who are involved in it, it’s a rather different question from possible intervention.
MR. MOYNIHAN: I am not embarking on that area. Miss Zelter quoted to your Lords an American case called Zeiger which are superior officers may have no obligation today to prevent their inferiors committing a crime. There is in this more of the Nuremberg principles might add to Oppenheim and the extent we recognise Customary international law. These appear at 55, to what extent are we compelled to recognise Nuremberg principles because I had not myself prepared to engage on that level. What I propose to do is having set up the answer to unlawfulness, to then simply look upon it not in Nuremberg terms but in our domestic law of necessity. And it did make a suitable alliance for Nuremberg-type propositions.
My Lords, that would represent a convenient place of timing, I can indicate I have necessity to cover, there is not much that separates me from the Crown in relation to the proper points of the necessity but there are particular points I seek to make. So I will be appearing tomorrow, I don’t anticipate being overly long.
LORD PROSSER: I appreciate that you have been longer this afternoon because we have been seeking ground from you.
MR. MOYNIHAN: It’s simply to assist others.
LORD PROSSER: Very well, 10.30.
Adjourned until tomorrow morning.