–>LORD ADVOCATE’S REFERENCE
P E T I T I O N O F
THE RIGHT HONOURABLE LORD HARDIE
HER MAJESTY’S ADVOCATE
in terms of
Section 123 of the Criminal Procedure
(Scotland) Act 1995
TUESDAY, 14th NOVEMBER, 2000
LORD PROSSER: Yes, good morning. We had a request to do what we could to improve the audibility of what goes on and I think I can hear in my ears that there is now something switched on. It has not always been satisfactory. I think the experience of many Courts has been that everybody is happier with it switched off and, in particular there can be problems, as Counsel will be aware and you may know Miss Zelter, but in order for speakers to be sensitive enough to pick up what Counsel are saying, it can pick up what they are saying to one another, which they don’t always want broadcast to the nation so perhaps – they are on at the moment, but we will see how that goes and I hope it does make things better. Are there any preliminary matters before we simply resume? Very well then, Mr Mayer.
MR MAYER: I am obliged my Lord. There is a preliminary matter I wish to raise, which is simply to move what I would call Productions for Roder, Volume 3, this is a small volume, most of which arises out of last time.
LORD PROSSER: I don’t suppose there is any problem about that, does anyone object, no.
MR MAYER: Obliged my Lord. I have copies of these for everyone concerned who does not already have a copy.
My Lords if I may now turn to Question 2 of the Petition. My Lords I propose to keep it strictly to the script. Firstly setting out the logic of my answer to the question and following thereon with an analysis of the materials in support of that structure.
LORD PROSSER: You say a script, have we got the script, or do you mean you are just going to read it?
MR MAYER: I hope your Lordships do have it.
LORD PROSSER: Well, is it something that was already in?
MR MAYER: No my Lord.
LORD PROSSER: Well I don’t know, I am not aware of anything having been added, no, I don’t think we have it. I would only add that you say stick strictly to it, by all means, but it is of course the whole nature and value of all Courts’ affairs that one hopes that arguments will be teased out and the Court will learn as it goes, so we can’t promise not to interrupt.
MR MAYER: My Lords the question in my submission poses three subordinate questions as it were and my response to these is, firstly looking at possession of nuclear weapons, to say that there is no such thing in law as mere possession of a fleet of Trident 2 nuclear submarines armed in the way that the British fleet is, there is but one purpose.
LORD PROSSER: I don’t understand that. Possession is a real concept which doesn’t depend on purpose.
MR MAYER: No, it doesn’t, that’s right my Lord, but so far as mere possession is concerned, that is not for the purposes of threat or use. One thinks immediately of the ornamental sword or article of that nature.
LORD PROSSER: I am sorry, but I mean your first proposition is that there is no such thing as mere possession, you are now embarking on whether the Government – of course there is such a thing as mere possession of any object anyway.
MR MAYER: Well, in theory that may be true my Lords and certainly mere possession does exist as a concept.
LORD PROSSER: Yes, so we can alter that, instead of saying no such thing, there is such a thing, is that right?
MR MAYER: Yes.
LORD PROSSER: Thank you.
MR MAYER: The words mere possession are in single inverted commas and what I mean to get at my Lords are that these items are possessed, but not for ornamental purposes, they are possessed for another purpose and that is deployment or use and that my Lords is the context in which I shall discuss possession. The second subordinate within the question is the placing of such weapons, and in my analysis my Lords I equiperate placing with deployment. And thirdly, my third premise is that deployment is and has been for the purposes of threat. I mean that in an active way my Lords and not in any passive sense.
My Lords the learned Crown Junior in his speech, in my submission, said as a central proposition, I hope I have noted him accurately, that threat or use of nuclear weapons is not prohibited by international law, quite the contrary in fact, there are circumstances where nuclear weapons could be threatened or used and in my submission that proposition is wrong, because two authoritative sources of customary international law and thus Scots law say so.
The Court has been taken through the Dispositif of the ICJ Advisory Opinion and I don’t seek to return to it. What I would point out my Lords is that the spectrum which the Court provided for us was one from Mr Moynihan’s position at the one end and the idea of use leading to what they call mutually assured destruction, which is shortened to its initials at the other end, and in-between these two points on the spectrum lies threat and use. And the other source of customary international law which renders threat or use illegal would be the Nuremberg Principles.
My Lords lest there be any doubt about the nature of the British Trident fleet, I make reference to the Scotland Act in Schedule 5, Part II, which mentions all of the specific reservations and Head L, Sub-head L3, Control of Weapons. The Act in one line, says, “control over nuclear, biological and chemical weapons and other weapons of mass destruction”. We must read that as being reserved to control of the Westminster Parliament. But that single line my Lords groups together first of all nuclear, biological and then chemical and then other weapons of mass destruction and it is clear in my submission, if any further clarity were required, that nuclear weapons of the type controlled by Westminster are weapons of mass destruction.
My Lords I cannot pass straight to the Nuremberg Principles, I propose to take a moment or two to deal with the status and function of the ICJ opinion. In my submission that opinion did not create new legal rights, nowhere within it can I find that it did that. It was in my submission declatory in quality and nature and focused upon the legality of using or threatening to use nuclear weapons and those in the general sense, not Trident in particular.
LORD PROSSER: Well, it was an Advisory Opinion.
MR MAYER: Indeed.
LORD PROSSER: That’s not quite the same as an Advisory Opinion.
MR MAYER: Yes, but it appears to me at least and in my submission what the Court was doing was trying to give the law as it stood at the time and that’s all I mean by declaratory.
Now my Lords it was unanimously declared, or advised, that to threaten or use indiscriminate nuclear weapons is illegal when the very existence of the State is not at stake. I notice the capital is used, but no further guidance is given as to what a State might be – and the judgement of the Court may to that extent be a rule of customary international law. I cannot go further than that my Lords and if I did it would simply be my own opinion. But importantly my Lords, when the Advisory Opinion is read with Article 6 of the Nuremberg Principles, it’s clear in my submission that the nature of the illegality which the Court mentions throughout is criminal and in my submission the nature of the crime is a crime against humanity.
LORD PROSSER: Well that’s a category of crime no doubt, I mean you will be aware of the attempt in the recent English case of Hutchison, the attempt by Counsel to formulate a sufficiently precise rule and you will be aware of what the Court called formidable difficulties with his formulation. Are you going to formulate what the actual rule is rather than just categorising it as crimes against humanity, is there a particular rule that you have in mind?
MR MAYER: The rule of customary international law.
LORD PROSSER: And a rule coming down into our own law?
MR MAYER: Yes, I am going to point to that, but my Lords I mention, particularly for your Lordships’ reference, Paragraph 20 of the Advisory Opinion where the nuclear States accepted that their actions were limited by customary humanitarian law and I mention Paragraph 78 where the Court was discussing the indiscriminate effect of such weapons and equiperating threat with the same act. Paragraph 79 where they mention, they go on to mention untransgressable humanitarian law and Paragraph 85 which says there is no doubt as to the applicability of humanitarian law. In Paragraph 85 which says in terms that there can be no doubt as to the applicability……
THE TRANSLATOR: Slow down.
MR MAYER: Of humanitarian law to nuclear weapons.
LORD PROSSER: The Translator has a copy of your script, because this is virtually being read out and she is the person who needs it most. We are at the foot of page 2, you will see the reference to 79 and 85.
MR MAYER: That is all I have to say for the moment my Lords. I will turn in due course, to the article written by Lord Murray, which has been mentioned I think by everyone who has spoken so far. In due course I will adopt certain arguments laid out therein, but for the moment that’s all I have to say about the ICJ.
Before turning to the central part of my submission I would mention my Lords that the International Military Tribunal at Nuremberg in my submission is to be thought of as a Supreme Court that had the status of the highest of Courts. There were professional Judges and Counsel and I have mentioned the submission made at the beginning and the summing up on behalf of the British was made by Sir Hartley Shawcross who was then the English Attorney General.
Now my Lords my answer to question 2, against the context of what I have just outlined, really begins by saying that the question should be answered in the affirmative, even if the ICJ Advisory Opinion didn’t exist and that is so….
LORD PROSSER: I suppose that’s the nature of the thing. They were looking for what we are looking for, a rule of customary international law. Either it existed or it didn’t and they might have found it or not and we might find it or not, so they weren’t determining, were they?
MR MAYER: I would respectfully agree with that My Lord. I make that submission because firstly I say that a legal right of intervention based on customary international law to prevent the crimes against humanity such as arise from the deployment of Trident was confirmed by the British, who formed part of the military tribunal, upon individuals and that was of course done decades before the ICJ Opinion. And of course, there was the Scots law of necessity which has been with us for centuries. I say confirmed by the Nuremberg Tribunal because it really is only of academic interest whether such rules existed before it.
LORD PROSSER: Are you saying it was confirmed by the Tribunal or the Government? Are you saying it was confirmed by the British Government and then your script says informed, are we talking about what the Tribunal did or what our Government did? What’s all this about the Government? What your script says is…..
MR MAYER: Members of which sat on the….
LORD PROSSER: I am sorry, members of the British Government sat on the Tribunal? What nonsense, surely by this stage of the case you are capable of some precision, what are you actually saying at this point?
MR MAYER: What I am actually saying my Lords is that the Judges who sat, some of them were appointed by the British and some were appointed….
LORD PROSSER: Does that matter?
MR MAYER: No, it doesn’t really matter.
LORD PROSSER: Some of the Judges were British, that doesn’t matter, are you saying something more?
MR MAYER: All that matters my Lord is that the right of intervention was confirmed by the Tribunal.
LORD PROSSER: It would be helpful if you included that in your script, because really having the scripts is all very well, but they are merely a distraction if they do not actually represent the submissions.
MR MAYER: Yes. Well I turn immediately to the legal right and I pause to observe the difficulty which seemed to be being expressed last time about a dilemma between whether the test before intervention was whether there was any more that the individual could do or whether there was any more that a reasonable actor could do, and in my submission the arising of a legal right resolves that dilemma because it rather bridges the gap, if I can put it that way, between the subjective and the objective test. But my Lords I will cite the judgement in due course, but it seems, and I have to accept immediately that nowhere did the Tribunal at Nuremberg expressly create or convert any new….
LORD PROSSER: Or identify.
MR MAYER: Oh, they did identify my Lord. I’ll come to the identification in a moment, but any new legal rights. They didn’t legislate something into existence. It appears and however, when one reads the judgement, in my submission there is language within it which strongly suggests that that is exactly what the Court intended to do. The Court doesn’t say in its judgement exactly where from, where it plucks the rights and duties which it discussed and that’s why I say it’s really only of academic interest where they came from once one looks at the judgement of the Tribunal.
LORD PROSSER: I don’t understand I’m afraid again whether one is talking about the Nuremberg Tribunal or the International Court of Justice, or indeed ourselves, if any such body tried or intended to create something new it would be doing what it should not do, its function is to discover rules of customary law which ex hypothesi already exist.
MR MAYER: I would respectfully agree with that.
LORD PROSSER: So what does it matter if they were trying to do something new, except to say that you are saying they did something improper.
MR MAYER: I am simply trying to set the context in which the Tribunal issued the key part of its judgement, for my purposes my Lord. The judgement of the Tribunal said in a passage called “The law of the charter”, it’s non paginated, but what it said was, this is quoted in inverted commas, “Individuals have international duties which transcend the national obligations of obedience imposed by the State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorising action moves outside its competence under international law”. Now that passage of course destroys the defence of superior orders and it seems to apply both to military and civilian personnel, it draws no distinction.
If I may say so my Lord the passage might be more eloquently read if one begins at the word “If”, which is in bold type, “If the State in authorising action moves outside its competence under international law”, then you go back to the beginning, “transcend national obligations of competence”, and the passage is better understood, at least by me, in that syllogistical form. My Lord that would seem to be the only source of what are said to be duties arising in the circumstances envisaged by question 2 and because the Tribunal does not mention legal rights, it mentions international duties, one has to examine the nature of the duties in order to see if any right arises. The Court doesn’t explain the nature of the duties, but it does seem, in my submission, that two possible meanings arise. The first is a duty to do nothing to assist in the commission of such crimes. That in my submission would be to take a neutral stance. And in my submission that cannot be the meaning which was intended by the Tribunal, because the phrase international duties has a vibrancy about it. It’s not possible….
LORD PENROSE: Mr Mayer because he did nothing to assist, were people not hanged because they did nothing to avoid the commission of the crimes, because of their failing?
MR MAYER: I understand that in fact they were at the time.
LORD PENROSE: How can that – how can the duty to do nothing to assist in the commission of crimes be without content because you have breached that by doing something that….
LORD PROSSER: I would find it quite helpful at the same time if you would say how this relates to the matter before us, which is whether there is a justification for a private individual in Scotland in doing various things, it is going to lead there, is it?
MR MAYER: It is, it is my Lord, it is directly. If I can deal with Lord Penrose’s question, it might be right that to do nothing in such circumstances is self wrong, but whether it would amount to a breach of duty….
LORD PENROSE: I understood your proposition to be that there was a duty to do nothing to assist in the commission of a crime, not to do nothing, and it was that you said was without content and I find that difficult.
LORD PROSSER: Yes, if you assist you will be in trouble. If you merely do nothing that is a different matter. Therefore there is a duty to abstain from positive assistance.
MR MAYER: As that strengthens my point I am happy to accept that. It did seem helpful to me at the time to distinguish those who are passive and those who are active.
LORD PROSSER: That may be, to understand the vibrancy is useful, if there are international duties it is surely important to find out what they are and I don’t think one does that by setting one’s…..
MR MAYER: The vibrancy is….
LORD PROSSER: Where is that going to get one, either there are international duties or there aren’t. It may be more important in this case to find out whether there are rights, such as the rights to destroy property in Scotland.
MR MAYER: Well, I trust, I am getting there my Lord.
LORD PROSSER: Well, I wonder.
MR MAYER: I am having to accept that maybe those who do nothing in certain circumstances, in the context of question 2, do in fact breach the international duties which the Tribunal mention. Passing on to item 2, that the Court says as individuals, it doesn’t distinguish between military and civilian for these duties, international duties. That’s very wide ranging. So they are not kept by the Tribunal to within any particular national or geographical scope, as to the extent that they are said to transcend national obligations of competence and I say that emphasises a positive duty, which is to do something, both by the individual to their own and other nations, to take action to prevent crimes against humanity and that would seem to make sense because it is after all individuals who commit such crimes and individuals can take preventative action.
LORD PROSSER: In the passage that you are quoting from the international duty in question seems to me the duty to abstain from giving assistance, because that’s what they have been talking about.
MR MAYER: Yes.
LORD PROSSER: Where do you find the positive element that they have a duty to go and stop things in the passage you have quoted?
MR MAYER: If my Lord reads the passage in bold, at the bottom of page 2.
LORD PROSSER: Well, perhaps you are coming to it then.
MR MAYER: I say that passage, and the judgement is part of the customary international law and can properly be read as conferring or confirming a legal right in order to perform the duty. One cannot have a duty to perform any law and no right to perform it.
LORD PROSSER: No, what they seem to be talking about is the duty to abstain from assisting.
MR MAYER: That is the context on which the Tribunal was…..
LORD PROSSER: Are you going to be able to identify anything in the Nuremberg decisions which indicates a duty to go and, as it were, interfere with crimes against humanity which are being committed. There may be something, but we don’t seem to be there yet.
MR MAYER: The passage that I have cited is the only passage.
LORD PROSSER: And it makes no reference to having a duty to go and interfere, try to prevent whatever, it doesn’t identify that.
MR MAYER: All it says is what it says my Lord, but it’s my submission that these duties which were identified must carry with them legal rights in order for the duties to be performed.
LORD PENROSE: Mr Mayer, can you (inaudible) prohibitions which are self-contained. Thou shalt not kill, what is the duty that you deduce from that?
MR MAYER: In the ordinary circumstance the duty is one of self-control.
LORD PENROSE: What is the right that you deduce from that?
MR MAYER: In the ordinary, thou shalt not drive above 30 miles an hour….
LORD PENROSE: Deal with the one I raised Mr Mayer please, it will help me in my simplicity, what is the right that you infer from that duty?
MR MAYER: Your Lordship is talking about the duty mentioned by the Tribunal.
LORD PROSSER: The duty that you claim is mentioned by the Tribunal, the duty of taking positive action in crimes against humanity. I mean on the whole that isn’t a duty on citizens in law, as his Lordship says there are self-contained prohibitions.
MR MAYER: Yes, but in my submission when one deals with crimes against humanity one is stepping away from the ordinary prohibitions imposed on every civilised society.
LORD PROSSER: Well, one is at least concerned with specific rules and you seem to have confirmed that the Nuremberg Trials did not lay down any specific rule, but merely sets down that there are international duties and they seem to be talking about the one of abstaining from assisting in crimes of that kind, so that they haven’t identified the rule. Are you going to go to identifying the rule, because it would be much easier to work once you get to the stage of having said what the rule is.
MR MAYER: I go further than your Lordship….
LORD PROSSER: Well would you go step by step perhaps and at some stage go to the specific rule, because we must be talking about specific rules, there are no crimes which are not specific rules.
MR MAYER: The rule in my submission has to be drawn from the passage of the Tribunal which I have quoted.
LORD PROSSER: So that’s the only rock on which you stand?
MR MAYER: That is all there is. The Tribunal tried many individuals and dealt with their circumstances uniquely and in its broad judgement dealt with the themes which came out of the individual cases. The main one being superior orders and this is the passage which destroys superior orders.
LORD PROSSER: But we are not concerned with superior orders.
MR MAYER: We are not concerned with that. I see my Lord that in dealing with superior orders the Court indicated to us that the reason why superior orders is not a defence is because individuals had duties which transcend superior orders.
LORD PROSSER: Yes, and that they identify the relevant one, namely the duty to do nothing to assist. You are saying there is another implied rule somewhere around all of this and we want to know what it is, or at least I do. What is the other implied rule, you don’t seem to identify it in your script. Well, it is the crux, isn’t it? What is the rule, and your script doesn’t identify it so far. I am willing to read ahead of it if I can find it.
MR MAYER: No my Lords, I am going on to the nature of the duty, in fact I have been on that.
LORD PROSSER: Are you going to respond to my question what is the rule? I mean you are saying it is a crime and so forth and there are rules and rights, what is the rule you are talking about?
MR MAYER: It’s to be drawn from the passage I have just read. If your Lordships equiperate, if the State in authorising action moves outside its competence under international law that would be committing a crime against humanity, then individuals have these duties which transcend that and what I am saying my Lords is that the right to intervene, just as your Lordship says, it’s crucial to my analysis, the right to intervene arises directly where one’s State has moved out of its competence under international law.
LORD PROSSER: Well, yes. But I mean what this actually says in the relevant sentence is that he who violates the laws of war cannot obtain immunity by acting in pursuance of the authority of the State, if the State in authorising action moves outside. Well that sentence as it stands says nothing at all about people who are interfering or intervening. It’s about those who violate the law, laws of war, and it is saying to them they don’t obtain immunity while acting in pursuance of the authority of the State. Now where is it in this passage, or anywhere else that one finds another proposition to the effect that if the State itself is acting and moving outside the competence then some identifiable duty or right or both falls upon the citizen. It just doesn’t seem to be talking about that at this passage.
MR MAYER: In my respectful submission it’s talking exactly about that. The context is the defence of superior orders, but the reason why superior orders is not a defence is because there is (inaudible) when one is ordered by a superior to step outside the competency of a Nation State to act in accordance with international law, a right not to, it’s expressed as a duty.
LORD PROSSER: But it’s not expressed at all Mr Mayer. This doesn’t deal with the bystander, does it? The first sentence says individuals have international duties which transcend the national obligations of obedience imposed by the State, where you are being actually required to obey an order, and then the next sentence I have just read, and these are about people who are being asked to obey some order and telling you what about them. But I can’t at the moment, I have tried already, I can’t at the moment see where you find any comment here about the bystander who is not being asked to obey anything, but merely I suppose he is a citizen of a country which is doing these things. Where in this do you find – you accept there is no express indication of what the bystander’s rights and duties are?
MR MAYER: I do my Lord.
LORD PROSSER: Now where is it implied, and if it is only implied, where do we identify the scope of his duties?
MR MAYER: First of all the Court says ‘individuals have’, they do not say ‘soldiers have’ and so the scope would appear to be wide enough to include both, and the trigger as it were of the right coming into existence is the action of the State in moving outside its competence and that’s as small a nutshell as I can put this.
LORD PROSSER: It is a very small one and what I am actually wanting is the nut, not the nutshell, is there something in the nutshell?
MR MAYER: Yes.
LORD PROSSER: Where in that case by implication does that Tribunal say anything about what is required or expected of bystanders?
MR MAYER: I have to accept the limitations of the passage, the scope of the passage which the Tribunal sets out.
LORD PENROSE: If you look to see what the scope of the general premise here is, is it more than that those who violate the laws of war do not obtain immunity on the ground that they are acting in pursuance of the authority of the State (inaudible). Is there any other general proposition than that?
MR MAYER: The Tribunal doesn’t state one.
LORD PENROSE: Is the answer an unequivocal no?
MR MAYER: The answer is an unequivocal no. This is the passage upon which I rely.
LORD PROSSER: Well, it may be it rather runs in parallel with arguments about necessity anyway. So far you have been looking to see whether there is a specific rule in relation to international law, but in fact it is the rule that you identify, or we have been trying to get you to identify, does that rule differ from the rules governing the law of necessity anyway? Would it bring different results from those available under the law of necessity?
MR MAYER: In my submission it would not bring a different result.
LORD PROSSER: From the ordinary law as to necessity. In that case we probably shouldn’t labour it because you are coming to necessity.
MR MAYER: The same result is achieved by both means and essentially the right to, or intervene is lawful in my submission by two routes, one is the arising of a legal right when one’s State steps out of his competence under international law….
LORD PROSSER: You see I wonder whether they in fact merged, although you haven’t I think put it this way. Whether your argument is really, with these very general statements about having transcended duties arises, really means that the Tribunal might acknowledge that when faced with that sort of crime, a crime against humanity, the citizen is, as it were, expected to do what his own law would allow him to do, if he could show that it was driven by necessity and one might say the ordinary man, when faced with a crime against humanity, might instead be expected to react by trying to take the law into his own hands, or something in the necessity kind of way. So they may not be so very different. I think it’s perhaps important to move on to necessity if this is really just about one passage in the Nuremberg decision.
MR MAYER: Well, it is my Lords, but it is the crucial passage. I see it as the crucial passage for the arising of a legal right and I say also, lest there be any confusion, that in times of necessity one is not taking the law into one’s own hands, one is augmenting the law.
LORD PROSSER: You are coming to necessity now, well let’s do that.
MR MAYER: What I am coming to my Lord, is on page 3. That as well as this right, which I say arises when the duty is triggered, the individual can look to the domestic law of necessity and in my submission what the Advisory Opinion and the Nuremberg Principles together do is provide a starting point for the basis in reasonableness which all Courts demand before upholding a defence of acting wilfully, but not maliciously. That was the approach taken in the instant case in the Court below. My Lords it’s important, no matter how one reads the conclusion, to be aware that it follows from either perspective, customary international law or necessity, that the legal right to intervention only arises after proper identification of the crime as I have in italics. Not just a vague notion, one cannot, in my submission, without any knowledge, sincerely believe something and use that as a defence in a criminal Court to a charge of destruction of property, because one could simply be wrong in one’s belief.
LORD PROSSER: But I don’t think anyone was arguing that sincere belief is a defence. Certainly my recollection is that Miss Zelter very emphatically said that’s not the point, not sincere belief, so why are we talking about why that should be a defence. No-one says it is.
MR MAYER: I believe my learned friend Mr Di Rollo said that and it is the Second Respondent’s position.
LORD PROSSER: Well, he may have said that it wasn’t a defence, but is it part of your argument that sincere believe is per se a defence?
MR MAYER: No. In my submission taking either of the two routes to intervention, I am using intervention my Lords as a shorthand for the destruction of property of another, and if one identifies that a crime outside the competency of a nation state against humanity is being committed, then of course I say the legal right arises to perform the international duty and that’s enough to legalise the intervention. And of course one stops there when exercising that right, one needs no more.
LORD PROSSER: Are there no rules governing the relationship between two as to what it is you may do?
MR MAYER: I will come to that. The extent of the right, the nature of the right, I am coming to all that, but for the moment when one goes down the necessity road one has to exhaust one’s domestic legal remedies and one does that in my submission by, for instance, complaining to the competent authorities and that would be those in positions of power, to desist from committing the crime and not for instance a passing Constable in the street. And only when one has done all that and been refused or ignored does one have the right in necessity to intervene.
LORD PROSSER: So this may be a necessity argument, do you say that necessity could apply in circumstances such as these, but surely very often the person who acts out of necessity won’t be saying, have I exhausted my legal remedies and so forth, he will simply be acting in very immediate and deserving circumstances, so this whole point about exhausting legal remedies isn’t the essence of necessity, it usually has nothing to do with it.
MR MAYER: I am sticking to the context of question 2 in opposition to UK policy about nuclear weapons for instance.
LORD PROSSER: But if we are trying to get at the nature of necessity, I don’t think it really turns on that kind of point, does it?
MR MAYER: Necessity in my submission arises either incidentally, where one has no time or opportunity to seek the assistance of the authorities and one just has to do what any right thinking person can do, and that’s taking us into the language of reasonable excuse and so on. The
statute for our summary purposes mentions….
LORD PROSSER: But you are saying that apart from that instantaneous category which applies there is another category, so you will be bringing us to a definition of that.
MR MAYER: What I say my Lord is that where the danger is instant, one uses the instantaneous route, but where the danger is constant and is capable of control by the authorities desisting or doing something about their conduct, then one really has to go through the exercise of exhaustion of complaint to those authorities and so on.
LORD PROSSER: So you accept that would be essential before one could begin to….
MR MAYER: My Lords the appropriate identification of such a crime requires answers to certain questions before one can arrive at the legal right. It appears that the first question is, what is a crime against humanity, that would be one of the acts outwith the competence of a national Government and I will come in due course to the crimes which are contained within the Nuremberg Principles, particularly Article 6. It’s very tempting to skip to that, but I’d rather not at the moment. So a written definition is to be found and that written definition comes from the International Law Commission and I will direct your Lordships to these materials in due course. I have thought of one other example which was discussed by the ICJ, that is of the Ecocide. The ICJ discusses that matter at paragraphs 94 and 95 and it was on that basis, if I can take an aside for the moment, that the motion contained within the Petition to the nobile officium was drafted, because I say that this is….
LORD PROSSER: Don’t let’s get diverted, we know that that was a matter – I really don’t think you are going to help by trying to press that.
MR MAYER: Very well my Lords. I have tried to set out for your Lordships the distinction between what happened at Nuremberg, from a philosophical point of view and from a legal point of view and I am happy to say that the philosophical point of view is simply that nothing fundamental happened, it was a case of….
LORD PROSSER: That can be a fairly short chapter, particularly when we are concerned with law and not philosophy, so let’s not take time with something which is irrelevant as a category.
MR MAYER: What’s happened from a legal point of view is the Tribunal took the opportunity to set out, in my submission, certain legal fundamentals and they named crimes against humanity and I say that there are broad relative rights of individuals to prevent these.
LORD PROSSER: You say they set them out, but they don’t do that.
MR MAYER: They certainly set them out.
LORD PROSSER: No, I am talking about the relative rights, and we have been over that and you say they don’t set them out.
MR MAYER: So one must first identify what is a crime against humanity. The second question is, is such a crime being committed, and I accept my Lord the question is pivotal to the Second Respondent’s position, because if the answer is no then the argument based on legal rights comes to a halt. But in order to answer yes or no one would have to know which crime, and here in my submission one can equiperate the ‘placing’ of such weapons in Scotland with the deployment of Trident. I’ll say more about that later. One needs to know by whom is the crime being committed, but in an international context my Lords one might ask does it really matter from the point of view of preventing it, but it would be necessary nonetheless to identify the actor. Then of course it’s also necessary in my submission to identify the means and also the, what might be called the timing of this act or series of acts and these meant – I recall your Lordship in the chair last time asking others whether if it is a periodic crime does it continue, the answer would be no, these would be discreet, periodic acts are discreet, they may form a pattern and they may add to the sentence as it were, but each one would be discreetly identified, but equal. My Lords there can be a constant act and I noted that it was accepted that the danger could be constant.
LORD PROSSER: These generalisations are the kind of things one would have to ponder about if one was trying to work out what the law might be in this area, but there is no point in labouring it, as it is pondering materials.
MR MAYER: I am setting it out as tests.
LORD PROSSER: All right, let’s go through them fairly quickly.
MR MAYER: In testing this, we firstly determine whether we have a right to intervene and crucial my Lords, number five is crucial, because the extent of the crime must, in my submission, be either massive, one can’t go categorising ordinary fights in the street as crimes against humanity, they must be massive, or within the definition of what has been written down as crimes against humanity.
LORD PROSSER: These are not questions for the person who is thinking of intervening, they are questions of law, is such a crime being committed, and there is an answer in law to that question. It may also be necessary to look at the question, but whether the intervener or potential intervener believed, these are actually questions about the existence of the crime, aren’t they, I don’t see why you are moving to what was in the mind of the intervener at this stage.
MR MAYER: What I am trying to get at my Lords is the answer to the question, is such a crime against humanity being committed, which must be answered, not in the abstract, but by reference to these real decisions.
LORD PROSSER: No, but it is a question of law and, as you say, if the answer is no to the question of law then I think according to your script at least, then the argument based on legal rights comes to a halt, it is not in fact a crime, that’s it, is that the position?
MR MAYER: Yes, if no crime against humanity is being committed then one has no international duty therefore to prevent one and accordingly no right arises.
LORD PROSSER: Yes, thank you.
MR MAYER: The next question is, at what stage does the citizen’s legal right of intervention arise and I thought it important my Lords to draw a crucial distinction between the phrase ‘citizen intervention’ and ‘civil disobedience’, they are often used interchangeably, and wrongly so in my submission. Citizen intervention in my submission is for, generally what might be called civilised purposes and disobedience is for personal purposes.
LORD PROSSER: But we are only concerned with necessity, we are not trying to redefine the whole circumstances in which people do things. Let’s stick to the questions we have got, sorry, we really do want to move on. I don’t see what we have got to do with these distinctions, we are concerned with the circumstances in which necessity is a justification.
MR MAYER: I have been using the phrase citizen intervention, so I thought it useful to draw that distinction, perhaps it wasn’t.
LORD PROSSER: I don’t know.
MR MAYER: My next point has already been made.
LORD PROSSER: Intervention you say, just to look at this, is what you call a ‘general civilising purpose’, it may be in many circumstances, but we are concerned with that form of intervention which consists of committing what would otherwise be a crime to prevent or interrupt the commission of someone else’s crime and plead necessity as his justification, so we are not about general civilising purposes at all, are we, was it necessitous or wasn’t it?
MR MAYER: My Lords in answering the question ‘at what stage does the citizen’s legal right of intervention arise’, there are two possible answers and I say that the first is the imperative approach which demands that not a moment be wasted, and I say that the moment a crime against humanity is identified then the citizen’s right is triggered to prevent that and the necessity approach is the other one involving exhaustion of legal rights, but that of course depends on circumstances. My Lords I did find a case within the British Foreign State Papers, it’s not actually a Court case, it’s correspondence between the British and American Government and, if necessary, I will turn to that in due course, that is now to be found in the third volume, it’s number four on the list which has been allowed.
LORD PROSSER: Which equates I suggest, it’s concerned with one of the two alternatives you have just mentioned, ie there is no time to seek the assistance, that is when you have no choice, well we are not concerned with that in this case, are we?
MR MAYER: I thought it might be useful because this was correspondence between States and not individuals and I am simply….
LORD PROSSER: If it is useful then tell us how, when it seems to be concerned with the other category of necessity, namely that of instantaneous reaction to an imminent threat or crime.
MR MAYER: If I may, I am not dealing with my materials at the moment.
LORD PROSSER: All right, we will come back to it.
MR MAYER: The fourth question is, if one has a right, then what is the nature of the legal right arising, and in my submission the answer in both cases, international law and necessity, is that if possible one must act non-violently, act timeously and accountably to bring an end to the danger and that is a long way of saying, do what one can when one can, and that’s the approach taken by certain American Apppellate Courts, which I’ll come to when I deal with my material, but at the moment all I say is that the nature arising is to do what one can when one can to bring an end to the danger.
The fifth question is, ‘to what extent can the citizen intervene?’ and the simple answer to that would be ‘proportionately’. It may be the case that the nuclear weapons arena demands slightly different criteria from the civilian, whatever civil arena, but certainly when all is boiled down, one cannot go to, what we used to call a cruel excess, one must act proportionately to the danger. The last question is, by intervening to the extent of damaging the property of another, has the actor himself committed a crime. I say that the answer is no, if there is the background of firstly an express legal right or there is reasonableness, not going to cruel excess, and in either of those circumstances the actor has simply done what he intended to do, namely alleviate or remove the danger, in my submission in either of those circumstances there’s no guilty mind and neither is there a wrongful act. This is because the acts done in alleviation of removal of the danger are not wrongful, but rightful and that’s where one arrives at the conclusion that the actor has acted wilfully, but not maliciously. We get into difficulties, in my submission conceptual difficulties when we use the words ‘excuse’ or ‘justify’ as though the actor in those circumstances had to demonstrate beyond his legal right or reasonableness that they have done nothing wrong. In my submission when one either has the legal right or the necessary background in reasonableness, one cannot be convicted.
There was a difficulty in the Court below, which is in the transcript, I am sure your Lordships will recall it, where almost at the end of the trial the situation arose where if the question had gone, or speeches had been made and the question had gone to the jury, the Judge having ruled as she did, then there was a possibility that persons in the dock in a Scottish criminal Court might have been right in the eyes of the Judge and wrong in the eyes of the jury and that can’t possibility be right. So in my submission….
LORD PROSSER: I understand that, but I don’t know if we need to go back to the conceptual difficulties that arose in the Court below.
MR MAYER: In my submission, for those reasons, when one intervenes to the extent of damaging the property of another, armed either with a legal right or any necessity, one does not himself commit a crime, and that my Lords is my submission on the arising of the legal right, the nature of the right, its extent, its use, its limits.
I turn to the materials for support for my submission and ask, where does one find the law defining a ‘crime against humanity’ and in my submission the first place where one finds it is in the minds of people who know right from wrong and, as Lord Murray has pointed out in his article it is only by ground-swell that certain changes have been made and his Lordship mentions slavery and torture, we think these days of ethnic cleansing, but it is to be found and begun in the Nuremberg Principles. Your Lordships will find that within the second volume for the Second Respondent, and I am throughout referring to these as the Green flagged Volume H. I see my Lord Kirkwood has a different volume, I am dealing with the large volume which has the green tickets and I am at capital H. My Lords I have noted a question by my Lord Penrose to my learned friend Mr Moynihan about the quality of assent to any rules which may exist in international law. I understood the question to be, don’t various Governments attach various standards of assent to various documents when dealing with international matters and my respectful answer to that would be, yes they do, but when it comes to the Nuremberg Principles, because of the way in which they arose and because of the British input, if I can put it at its widest, into the proceedings, my submission would be that the quality of assent so far as the British were concerned to these Principles can be put at its highest.
LORD PROSSER: You are losing me I am afraid, are we talking about what happened at Nuremberg or a Principle which emerged thereafter? This document you are looking at which is a 1949 document, is that right, are you saying that this would apply during the Nuremberg Trials, or is it something that derived from it?
MR MAYER: No, these arose from them.
LORD PROSSER: And therefore I can’t see what it matters what our input at Nuremberg was in relation to this, it is a matter of convention, it is a convention at a later date.
MR MAYER: I’ll talk about how it is incorporated into law in due course.
LORD PROSSER: But you are talking about our input at Nuremberg, our input at Nuremberg is just part of the history that happened to lie behind this document, this wasn’t applied at Nuremberg, it was later.
MR MAYER: Yes.
LORD PROSSER: Are we looking at the history or are we looking at this agreement?
MR MAYER: I am simply saying my Lords that it is widely known that the British took a large part and when I come to demonstrate….
LORD PROSSER: I took a small part myself as a guard commander over certain of these people, but I don’t see how that is any more or less relevant than what happened at Nuremberg itself. We are now looking at this 1949 convention, are we, well let’s get to it.
MR MAYER: My Lords six Principles, I beg your pardon, seven Principles were identified and they have become widely known as the Nuremberg Principles, Principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgement, as your Lordships can see, these were adopted by the International Law Commission in 1950 and I’ll come to that document in due course. I wish to draw your Lordships’ attention to page 2, Principle 6, “The crimes hereinafter set out are punishable as crimes under international law”. They are then listed as A, B and C.
LORD PROSSER: Where are we?
MR MAYER: Page 2, I have misled your Lordship, mine is marked H and everyone else around the table seems to be marked A.
LORD PENROSE: It’s also A in your index.
LORD PROSSER: Everyone else you say has A. I think the points I was making remain the same, this is a subsequent matter of agreement which has its roots, in actually what was contained in the original Charter which regulated what happened at Nuremberg.
MR MAYER: Yes. I wanted to draw your Lordships’ attention to Principle 6, which is on the second page, and these are said to be, “The crimes hereinafter set are punishable as crimes under international law”. A, B, C. A is crimes against peace, (1) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, crimes or assurances. (2) Participation in a common plan or conspiracy for the accomplishment of any of the acts….
LORD PROSSER: Are we concerned with these, which are we going to be interested in?
MR MAYER: I am myself interested in B.
LORD PROSSER: I thought you were looking for definitions of crimes against humanity, it’s not really that.
MR MAYER: These are the particular Principles my Lord and these went through two stages before being adopted into international law.
LORD PROSSER: I am not asking about these. According my notes and according to your script where do I find the law defining a law against humanity. On the page that we are looking at crimes against humanity are indeed defined at Head C and I was not sure why, if that was the avenue you are going up, why you were looking at the definitions in A and B.
MR MAYER: In my submission they can all broadly be described as crimes against humanity. They are set out in three categories, but can obviously be taken in the broadest possible way and narrowed down as they go along.
LORD PROSSER: I am sure they can all broadly be called crimes against humanity, but they are not all those described in the Nuremberg Principles where crimes against humanity is used to describe categorical….
MR MAYER: The word humanity appears there, yes.
LORD PROSSER: The expression crimes against humanity is used there in contra distinction to the other and if my recollection is right they had very important considerations in dealing with people appearing at Nuremberg.
MR MAYER: If I may draw your Lordships’ attention to B, “War crimes, violations of the laws or customs of war which include, but not limited to, murder, ill treatment or deprivation, to slave labour, or for any other purpose of civilian population or unoccupied territory, material or ill treatment of prisoners of war or persons, killing of hostages or plundering of public or private property, wanton destruction of cities or villages not justified by military necessity”. That is the important one for the context of the question within the Lord Advocate’s Petition, “Crimes against humanity are murder, extermination, deprivation or other inhumane acts done against another civilian population or …reads… in execution of or in connection with any crime against peace or any war crime”. So C really encompasses A and B.
LORD PROSSER: I beg your pardon, you choose to use the expression crimes against humanity in a wider sense, in ordinary English that may be right. It might be better to talk about humanitarian rules of international law for you, but it doesn’t impress those in Nuremberg.
MR MAYER: Well, in my submission….
LORD PROSSER: You want to look at them all and you say they all go under what you call the humanitarian aspects of international law.
MR MAYER: I do my Lord. So these were the Principles. The next document I do draw your Lordships’ attention to is the judgement of the Tribunal.
LORD PROSSER: The Nuremberg Tribunal?
MR MAYER: Yes, that is within the new volume, Volume 3 and it is number 3 and it is headed “The Avalon Project at Yale Law School” and I have gone to this source because it’s a responsible university and I needed a clean version of what was otherwise a heavily marked version, the only other version I could get. This is the judgement of the Tribunal which on the first page sets out it’s jurisdiction.
LORD PROSSER: I am not quite sure what you mean by it’s their judgement of the Tribunal, it’s a very complex process the whole Nuremberg process, what do you mean by their judgement?
MR MAYER: What I mean my Lords is this is the only, these are the only remarks of the Tribunal which are applicable to the whole proceedings, all other remarks are applicable to individual trials.
LORD PROSSER: Yes, right, very well.
MR MAYER: The Court on the first page sets out its jurisdiction and on page 2 sets out some of the broad arguments and its responsibilities.
LORD PROSSER: So that in looking at what might have been said at Nuremberg we have to remember that it was set up ad hoc on a Charter which defined certain things for its own purposes, that doesn’t naturally flow into international customary law in itself, because it was ad hoc, and as it were not working on customary law, but find those things for its own purposes and so forth.
MR MAYER: Yes my Lord. Your Lordship, as usual, is well ahead of me.
LORD PROSSER: Actually it is the page we are just looking at, page 1.
MR MAYER: That is why the Principles set out at Nuremberg had to go back to the UN and formulated by the International Law Commission before being adopted as international law.
LORD PROSSER: That’s what I had in mind, but what was taken into international law in some sense was the Principles we have just looked at, it’s not clear to me at the moment what more one has from what was done at Nuremberg. Light, I suppose light can come from curious corners.
MR MAYER: I really wish to take your Lordships to page 6 to 7 of this document and this is where the Tribunal aims its remarks, all in the context of trying individuals and against the broadly public defence of superior orders. In the first main paragraph at the top, the Court sets out that it was given a list of cases where individual offenders were charged with offences…. reads…. be enforced”. And this Court has heard enough about that in my submission. The passage upon which I relied earlier is to be found in a paragraph which begins, “On the other hand”. “The very essence of the Charter is that individuals have international duties which transcend…. reads…. cannot obtain immunity, etc.”. That comes at the very end of the Tribunal’s deliberations and that is why….
LORD PROSSER: It rather confirms what we were saying earlier, doesn’t it, that they are dealing quite specifically with the question of obeying orders.
MR MAYER: Yes, there is no doubt about that, that the Tribunal was principally concerned with….
LORD PROSSER: No, but at this point they are specifically dealing with that.
MR MAYER: Yes, everything that was in that context and one has to look behind that context and ask certain questions which I have attempted to do this morning.
LORD PROSSER: But what that boils down to is looking away from this to some other source of knowledge which this isn’t dealing with.
MR MAYER: Well I have no more than this my Lord. My Lords the next document I refer your Lordships to is again in the second volume for the Second Respondent and it’s I, principal Resolutions adopted by the General Assembly of the United Nations.
LORD PROSSER: Well, my I is the Lord Justice Clerk in 18 something or other, have I got the wrong thing, what are we looking at?
MR MAYER: We are looking for this document.
LORD PROSSER: I can’t see from there, what are we looking at?
MR MAYER: Resolutions adopted by the General Assembly of the United Nations.
LORD PROSSER: In the green flagged thing?
MR MAYER: This is in volume one for the Second Respondent, it is headed I.
LORD PROSSER: It’s not the green flagged volume?
MR MAYER: It’s not, the green flags are volume two, even although I said volume two, I really meant volume one. I am concerned with Resolution 95/1, which is set out on one page. The General Assembly there my Lords recognise an obligation laid upon it by certain articles of the Charter to initiate studies and so on.
LORD PROSSER: This is in December 1946, is that right?
MR MAYER: 14th of February 194…. I beg my Lord’s pardon, that seems to be the 11th of December 1946. The General Assembly recognises certain obligations which were laid upon it and took note of the International Military Tribunal for the prosecution and punishment of the major war criminals and European access signed in London on the 8th of August 1945 and it says, “Therefore confirms the Principle of international law recognised by the Charter of the Nuremberg Tribunal and the judgement of the Tribunal, directs the committee on the codification of international law established by the General Assembly resolution, to treat, as a matter of primary importance, plans for the formulation, the contents of the general codification of conventions against peace and security of mankind or…. reads… and in the judgement of the Tribunal”. My Lords, what that’s doing is sending the Principles to the committee for codification.
LORD PROSSER: You have already looked at the result of that, the result of that was the Nuremberg Principles.
MR MAYER: Well my Lords actually my next document is the authoritative one, which is the deliberation of the International Law Commission. It’s….
LORD PROSSER: What sort of authoritative, this is part of the document to the adoption of the Nuremberg Principle in the documents we have already seen.
MR MAYER: The resolution came after the document we have seen and they sent the Principles to the International Law Commission for codification. Now the International Law Commission doesn’t make international law, it codified and sent its draft back for adoption.
LORD PROSSER: The document we saw of the Nuremberg Principles was the document which had been adopted by the International Law Commission in 1950, the one you referred us to earlier, it’s a 1950….
MR MAYER: I think all that that means is that what is contained therein was ultimately adopted. The exercise I am going through at the moment….
LORD PROSSER: I don’t know what we are going through at the moment, but please make it clear why we have to look into what was done by the General Assembly, which was merely asking somebody to do things, which is a complete waste of time.
MR MAYER: In my respectful submission what I am doing at the moment is demonstrating to your Lordships what is the international law on crimes.
LORD PROSSER: Well, if you say we have to do it then we have to do it.
MR MAYER: My Lords in the same volumes, that’s Volume 1, E, I hope your Lordships will find the Yearbook of the International Law Commission for 1950. Now my Lords this document is in four parts, the first is historical, the second part sets out the resolutions of the General Assembly which the Commission is dealing with, the third part deals with the codification exercise which the Commission is charged with and the fourth part is a conclusion, quite short. I haven’t photocopied all of this document, it is hundreds of pages long.
LORD PROSSER: Tell us which page you want to refer to and what it is.
MR MAYER: Could I go my Lords to page 374 and I am dealing with 374 through to 377 and that in my submission is where the Nuremberg Principles are codified. Your Lordship will wish to note immediately that the Commission virtually adopted verbatim the formulation of the Principles, but it’s necessary in my submission to look at the actual wording. There is set out in paragraphs underneath each Principle which has been codified, an explanation by the Commission for the way in which it has acted. Number 1, 2, 3, 4 and 5 are set out up to page 375. Page 376 contains Principle number vi, which we have looked at, and your Lordships will note the same categorisation against crimes against peace, war crimes and crimes against humanity.
My Lords if I can direct the Court’s attention to paragraph 116 on page 376, the Commission in explanation, explains that, “The terms ‘planning’ and ‘preparation’ of a war of aggression were considered by the Tribunal as comprising all the stages in the bringing about of a war of aggression from the planning to the actual initiation of the war. In view of that the Tribunal did not make any clear distinction between planning and preparation. As stated in the judgement, planning and preparation are essential to the making of the war”. “It must be accepted that”, in 117 the Commission goes on to say, “Some members of the Commission feared that everyone in uniform who fought in a war of aggression might be charged with the ‘waging’ of such a war”. It says, “The Commission understands the expression to refer only to high ranking military personnel”. I will be going on to equiperate, indeed I think I have already equiperated deployment with threat. ” A legal notion of the charter to which the defence objected was the one concerning ‘conspiracy’. The Tribunal recognised that ‘conspiracy is not defined in the Charter’. However, it stated the meaning of the term, though only in a restricted way.”
LORD PROSSER: These rules are concerned with the category of crimes against peace, planning, preparation of a war of aggression or a war in violation of international treaties, crimes or assurances. I just want to know which of these it is that is going to be apposite to our present concerns.
MR MAYER: It can be all of them.
LORD PROSSER: No, I am asking you what in your submission is the relevant matter, I mean they don’t sound to be anything that is alleged here.
MR MAYER: Planning and preparation my Lords is the stage before deployment.
LORD PROSSER: No, no, no, planning and preparation, waging of a war of aggression, are you saying that our Government have waged a war of aggression, I just want to find out what you are submitting or, alternatively are you saying that they are doing these things in relation to a war in violation of international treaties, crimes or assurances, I just want to know where you are.
MR MAYER: I say that the deployment of Trident is equivalent to a threat, and that was unanimously said by the ICJ to be illegal.
LORD PROSSER: Well, we are coming to these bits.
MR MAYER: I have said the nature of that illegality is a crime against humanity used in the broadest sense and what I have come to here….
LORD PROSSER: You say in the broadest sense, but at this point they are still dealing with the very specific categories set out at Principle 6 while at this point I am only trying to get some broad indication of what all this material about crimes against peace, waging wars of aggression or violation of treaties, etc, what that has to do with our concerns.
MR MAYER: Well, firstly my Lords one has to identify is a crime against humanity being committed.
LORD PROSSER: Yes, but these seem to be categories of it that I don’t think you were alleging, what category of crimes against humanity are we concerned with?
MR MAYER: We are concerned with the threat posed….
LORD PROSSER: In this categorisation where does it bite?
MR MAYER: Well, in 69 (1), planning, preparation and I would go so far as initiation which….
LORD PROSSER: I am directing your attention to these words, “war of aggression or in breach of treaty, etc”, do you have in mind some treaty or agreement or assurance which you say the Government are in breach of, or are threatening to be in breach of, or preparing to be in breach of, or is it an aggressive war that they are playing. It seems pretty elementary if you are referring us to these things we should know why.
MR MAYER: To plan, prepare or initiate the use of Trident is in my submission struck at by 6.1 because, or for the reasons that my learned friend Mr Moynihan gave, the nature of those weapons, areas of those weapons, the indiscriminacy…..
LORD PROSSER: I don’t think Mr Moynihan guided us through this passage, I think he was dealing with a quite different conceptual, as you would call it, basis. Why this passage which is dealing with wars of aggression and so forth, is in point, is it in point, or is it just something with which you would equiperate your propositions.
MR MAYER: That is my intention my Lord.
LORD PROSSER: If you are only equiperating it then one can do that to its heart’s content. As long as you are not saying that it does fall within these categories then I would understand.
MR MAYER: I think I will have to go further my Lords.
LORD PROSSER: Choose a direction then.
MR MAYER: I say that deployment of Trident by the British Government contains planning and preparations, that must be right, it’s not out there at random.
LORD PROSSER: Keep going.
MR MAYER: And its intention is to threaten, I’ll come to the language of threat in due course. We know from the evidence that Trident is a first strike aggressive weapon. Professor Rogers I think at page 10, and although it may or may not be said to be at war when it’s in the water, that really doesn’t matter, if one gets as far as threat one reaches the unanimous opinion of the ICJ.
LORD PROSSER: We will come to that, but you are bringing this under a category of the planning and preparation of aggressive war, ‘war of aggression’ is the expression.
MR MAYER: Yes. Indeed it is also accepted that Trident operates under the NATO command and that in my submission is ii, “Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned above”.
LORD PROSSER: Because in the same way NATO are planning a war of aggression.
MR MAYER: They are being aggressive.
LORD PROSSER: We are trying to categorise it. No, that’s why we have got this document here.
MR MAYER: I would add 1 and 2 together, yes.
LORD PROSSER: But it is a war of aggression is the relevant phrase.
MR MAYER: Yes. The Commission is careful my Lords at 118, that’s the bottom right hand bit of page 376, to say, 118, “A legal”. The Court below recognised that conspiracy is not defined in the Charter, however it stated the meaning of the term, though only in a retrospective way. But in the opinion of the Tribunal it was said in the judgement conspiracy must be clearly outlined in its criminal purpose, so first of all there must be a conspiracy and it must be a criminal one, that’s why I was careful at the beginning to try to identify the name of the crime as a crime against humanity, but also to say that the nature of the illegality being discussed was criminal not civil.
LORD PROSSER: And you say that identifies what this conspiracy that you talk about is.
MR MAYER: No, I say one must read the rest of the passage, “It must not be too far removed from the time of possession and of action. The planning, to be criminal, must not rest merely on the declarations of a party programme such as found in the 25 years of the Nazi Party announced in 1920, or the political affirmations expressed in Mein Kampf”. “The Tribunal must examine whether a concrete plan to wage war existed and determine participants in that concrete plan”. That is where my Lords I say in my analysis that one must look to see whether there is a crime being committed, who is doing it and is there this concrete plan.
I would go on to draw your Lordships’ attention to the British Government’s strategic defence reviews and say that that is a concrete plan.
LORD PROSSER: I am sorry, I though the conspiracy that this was dealing with was NATO and not us, not Britain.
MR MAYER: Of course British defence reviews is written by Ministers, part of NATO.
LORD PROSSER: The conspiracy we are talking about is a NATO conspiracy, or so you said, and that’s what this is concerned with and you are going to demonstrate that there is a NATO concrete plan for a war of aggression.
MR MAYER: I am sticking to the deployment of Trident.
LORD PROSSER: That may have gone beyond planning and preparing, but you say there is a concrete plan of NATO for a war of aggression and that they have reached the stage of deployment which is somewhere along the planning, preparation route towards waging and you will be bringing us to identifying that concrete plan.
MR MAYER: Yes, I shall. B I have read out, that is verbatim, the Principles, and C is also verbatim.
LORD PROSSER: Well, of course they are because these were adopted.
MR MAYER: One is tempted to say that the Commission did actually send the Principles back and say – what do you want us to do with this, and they sent them back and said, do what you are charged to do and they simply adopted these.
LORD PROSSER: It tells us about this in the preamble to the Nuremberg Principles.
MR MAYER: So at 374 one finds that formulation, the language is confusing, they were asked to codify, they seem to have formulated, it may be the same language.
LORD PROSSER: Well, they discussed.
MR MAYER: But at all events my Lords this is where one finds the Black Letter Law of the definition of crimes against humanity.
LORD PROSSER: Although that phrase is only used in the context to define something quite, well, something more limited.
MR MAYER: Yes, the structure of the judgement of the Tribunal leaves one rather surprised, reading with a modern eye, do we stick with it?
LORD PROSSER: Nothing surprises me with a more ancient eye.
MR MAYER: Now my Lords it may be argued that what happened in Nuremberg was that the Principles were set out, that there was this mechanism via the International Law Commission and all in the garden was meant to be rosy. However since then there has been de facto ignorance of these high principles, leading us through the Cold War to the present day.
LORD PROSSER: Are you saying that they have become matters of customary international law, conventional international law, neither of which seems quite possible.
MR MAYER: Yes.
LORD PROSSER: What, you say they were.
MR MAYER: I would say my Lords that in codifying the crimes and the UN units adopting these….
LORD PROSSER: The General Assembly, everyone knows that’s not a legislative body.
MR MAYER: No, these become customary international law, but because they are written down….
LORD PROSSER: Well, they might, you see what in fact is said in the Introductory note to the Nuremberg Principles is that “In the course of the consideration of the consideration of this subject the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgement constituted principles of international law. The conclusion was that since the Nuremberg principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them”. So it at the very least is left wide open, the whole question of whether these had been or ever would be Principles of international law. Now I want to know what your submission is as to their status at 1950 or at any other time, there must be a simple submission on that, whatever else.
MR MAYER: In my submission all that’s being said there is….
LORD PROSSER: I am asking about your submission and explanation why, your submission as to their status, are they or are they not rules of international law and if so customary or conventional.
MR MAYER: They are customary….
LORD PROSSER: And became so how and when, can that be put briefly or not?
MR MAYER: I understand that my learned friend Mr O’Neill will address the Court.
LORD PROSSER: Well I am concerned with your submission, or are you adopting in advance what Mr O’Neill may say? I am sure he will be happy with such a blank cheque.
MR MAYER: What I say my Lords is that the Westminster Parliament was advised in 1963 by the then Lord Chancellor, that the United Kingdom took the view that the Nuremberg Principles, as formulated by the International Law Commission were “Generally accepted among States and have the status of customary international law”, and that comes from Hansard, House of Lords, Volume 253, Column 831 of the 2nd of December 1963.
LORD PROSSER: Now you are moving on from that I think.
MR MAYER: Well, it might be argued that these had been ignored and that in fact these Principles no longer represented customary international law.
LORD PROSSER: I don’t think anyone had suggested that.
MR MAYER: But in my submission nothing could be further from the case. I am coming on my Lords to deal with what the House of Lords has said in Pinochet Number 3 case. I have got quite a lot to say about that.
LORD PROSSER: You can say the first ten minutes of it, that will be useful now.
MR MAYER: My Lords the version which I have been working from comes from the second volume for the Second Respondent, that’s the green flags, letter T, that’s 1999 2 Weekly Law Reports at page 827. All of the Judges discussed the Nuremberg Principles, they were of course discussing Principle number 7 and not 6, but they didn’t distinguish between any of them.
LORD PROSSER: So what’s the first point as it were, or the first short point?
MR MAYER: The short point is that the Nuremberg Principles have been expressly approved by every Judge in Pinochet 3 as being current customary international law.
LORD PROSSER: Is that disputed Mr Depute?
MR MENZIES: No.
LORD PROSSER: Well, it seems to be conceded.
MR MAYER: Nevertheless my Lords I would seek to draw your Lordships’ attention to certain important passages which have resonance with the Lord Advocate’s second question.
LORD PROSSER: I feel about resonance the way I feel about vibrancy. Of course you can look at the case if there is a more detailed point, but just from recollection I don’t recall anything that would throw light on the detailed meaning of Principle States.
MR MAYER: Not from the point of view which your Lordship has taken this morning.
LORD PROSSER: If the main short point is, as one would expect, conceded, what are we going to learn from this?
MR MAYER: If I may my Lords, address your Lordships to page 840, Lord Browne-Wilkinson, and this is of course in the context of torture and his Lordship helpfully sets out for those of us seeking to know where or what the mechanism was of how these Principles came to be customary international law. In the bottom paragraph his Lordship says, “The concept of personal liability under international law for international crimes is of comparatively modern growth. The traditional subjects of international law are states not human beings. But consequent upon the war crime trials after the 1939-45 World War, the international community came to recognise that there could be criminal liability under international law for a class of crimes such as war crimes and crimes against humanity. Although there may be legitimate doubts as to the legality of the Nuremberg Charter: Charter of the International Military Tribunal, adopted by the Big Four Powers (1945) in my judgement those doubts were stilled by the Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal adopted by the united Nations General Assembly on 11 December 18946 (G.A. Res. 95, 1st Sess., 1144; U.N. Doc. A/236 (1946).That affirmation affirmed the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgement of the tribunal and directed the committee on the codification of international law to treat as a matter of primary importance plans for the formulation of the principles recognised in the Charter of the Nuremberg Tribunal. At least from that date onwards the concept of personal liability for a crime in international law must have been part of international law”. I notice his Lordship seems to group together war crimes and crimes against humanity in a class of crimes. There may be doubts about the legality of the Nuremberg Charter adopted by the big four powers, “In my judgement those doubts were stilled by the Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal”
LORD PROSSER: Well that was obviously just a decision, so of course there will be doubts about its legality at the time, but as he goes on to say, that’s all that happened afterwards, what’s the point here?
MR MAYER: I wish to draw your Lordships’ attention to page 841 for the purposes of drawing a distinction between what might be called official acts at high level and the legality of such acts. My principal submission is that the deployment of Trident is official but not legal. Lord Browne-Wilkinson, in the bottom paragraph 841 discusses this distinction and says, “But there was no tribunal of court to punish international crimes of torture. Local courts could take jurisdiction. But the objective was to ensure a general jurisdiction so that the torturer was not safe wherever he went.. For example, in this case it is alleged that during the Pinochet regime torture was an official, although unacknowledged, weapon of government and that, when the regime was abut too end, it passed legislation designed to afford an amnesty to those who had engaged in institutionalised torture. If these allegations are true, the fact that the local court had jurisdiction to deal with the international crime of torture was nothing to the point so long as the totalitarian regime remained in power: a totalitarian regime will not permit adjudication by its own court on its own shortcomings. Hence the demand for some international machinery to repress state torture which is not dependent upon the local courts where torture was committed”. And in my submission the evidence from the Court below demonstrates, from Rogers and from Johnston that they both thought that deployment of Trident was a form of totalitarianism, it seems rather extraordinary, to me at least, but that’s what they said. I would draw your Lordships’ attention to the passage about torture and say, well, if that’s, if what his Lordship said about torture is true then it must also apply to indiscriminate mass destruction.
LORD PROSSER: I don’t know, I mean this case was discussed in the recent Hutchison case and at least there Lord Justice Buxton seemed to think that what was said in Pinochet 3 wasn’t clearly consistent with the submission that this had just come down in the English law, English criminal law. I mean he referred to the fact that it was only with the passing of Section 134 of the Criminal Justice Act in 1968 that English Courts had jurisdiction over international torture. It’s quite complex this I think, isn’t it? Well, perhaps that’s a point at which we can treat 10 minutes as having expired.
After an adjournment for lunch.
MR MAYER: I feel I can pass from the confirmation of the Nuremberg Principles by the House of Lords to page 6 of my written note, to the top of that page. I am in the chapter called the Black Letter Law and where we find it, and I hope it will be useful my Lords to take a quick look through what the experience of the American Courts have been. They have had an opportunity to consider very similar questions to these raised in the instant matter. There is in Volume 1 of the Second Respondent’s Productions, at J, which appeared in the Santa Clara Law Review. It is getting on in vintage now, 1986, it was written by a post graduate student and another and it in my submission fairly summarises the history and development and all the elements in their law. The Article appears in four chapters, begins at page 299 of the Journal and through to 309, is a development called United States Law of Necessity. Page 310 to 325 sets out their law of necessity in the nuclear age and the third chapter is pages 326 to 348, setting out the elements of the necessity defence when citizens intervene and from 349 to the end are the conclusions.
LORD PROSSER: Just before we go to it, do I understand therefore it is about necessity rather than any specific international considerations, international law considerations. Necessity is a matter of the domestic law in every country. It will vary in every country, but if it is about necessity, with all respect to Santa Clara and all that, one would normally just look at one’s own laws and see that it had apparent gaps, wouldn’t you? I mean our law is what our law is. It seems a funny starting point.
MR MAYER: Well, the particular assistance which the American Courts provide is having had a fairly deep and wide look at the citizen intervention type of case connected with nuclear issues….
LORD PROSSER: I follow that, but whether – you say that that actually produces light on necessity as a concept.
MR MAYER: Certainly the criteria, some of which were mentioned by my learned friend Mr Moynihan in his reference to the Berrigan case, are useful.
LORD PROSSER: Okay.
MR MAYER: So my Lords I needn’t trouble your Lordships with the – I shouldn’t say I needn’t trouble your Lordships and take that as a departure, but I can steer quickly through the history to the necessity defence in the nuclear age. At page 301 the authors cite the case of Mitchell v Harmony. This case was concerned with the existence of damage and said it was for the jury to decide on the facts. Also if there is a question about imminence, moves on to consider an example of that, an early case, Surocco -v Geary 3 Cal. 69 (1853). This was a fire which almost burned down the then small town of San Francisco. A public officer ordered the destruction of houses for the purpose of creating a fire break and was subsequently sued by one of the owners. The Californian Supreme Court held that the action was proper because the right to destroy property to prevent the spread of conflagration has been traced to the highest law of necessity and in my submission, there are parallels with intervention to prevent nuclear strike or accident.
LORD PROSSER: That wasn’t intervention by a citizen, it was a public officer.
MR MAYER: A public professional in that case.
LORD PROSSER: That sounds more like the general rights of police, I don’t mean police in its abstract sense, in other words there is perfectly good Scots law on this, so we don’t need to go to this, the right to interfere with private property where that’s in the interests of the State.
MR MAYER: No my Lord, I’ll be coming shortly to a case involving the British Government, Attorney General versus Nissan, from 1969, but this sets out, in my submission, principles which are absolutely in line with our own. At the bottom of that page, it’s marked “Californian Legislature. Right to abate pubic and private nuisance”. So they both have a right.
LORD PROSSER: By statute apparently, what’s that got to do with it?
MR MAYER: A right arising from a Legislature, I haven’t gone so far as to say that the Tribunal at Nuremberg can be regarded as a Legislature in exactly the same way, but I do say it’s guiding authority in the same way that the Advisory opinion is guiding authority. My Lords at page 303, in a case known as the Bisbee Deportation case 92 Cal. App.2nd 776,208 P2d 68-73 (1949), about eight lines down, we are told that the Defendants were acquitted because of necessity, “The Court made several important points, the distinction between self-defence being justified to repulse a wrong and the necessity as justifying the exercise of a right. Actions of necessity can be against persons as well as property. The burden of proving the existence of necessity lies with the defendant and the right of citizens to act based on necessity is a natural right that appertains to the individual. Finally, the court cited the 1846 Rhode Island Militia case to re-establish that necessity is a fact to be determined by the jury”. That was their first authoritative discussion on the matter. In to the modern age, the case of Morissette -v- United States 342 U.S. 246 (1952) is cited. “The US Supreme Court, pointed out the case would have been insignificant had the trial not been conducted in such a manner and the facts presented to the jury in such a way as to raise fundamental and far reaching questions in criminal law . The case was granted certiorari solely because essential questions of fact, such as the reasonableness of defendant’s act, were excluded from the jury during trial”.
LORD PROSSER: This is an article by an aerospace engineer and a law student and I really can’t see that we can treat it as being a source, a useful source, unless there are particular cases making particular points in a particular way.
MR MAYER: They do discuss the Berrigan case which I shall come to very shortly my Lords.
LORD PROSSER: What I am saying, you are appearing before us, you can make submissions as to the effect of the American case, they would come from you as legal submissions and that would be appropriate. I can’t see how that would be in any way reinforced by the views of either an aerospace engineer or a law student. How does this add to your simply making the apposite submissions?
MR MAYER: My only purpose in referring your Lordships to this summary of these cases is to provide a comparison with high ranking United States cases in a convenient way.
LORD PROSSER: If as I say there is some point in a case which, as it were, is at one with your submissions and out of international amity between Courts, you find it persuasive, then no doubt you will refer us to such cases, but this kind of overview of cases, with a kind of (inaudible) version of what they were thought to mean, particularly as it seems that that law student was one who was devoting herself to support of a cause, not a classic lawyer’s position, she was supplying material to support, it says, particular sides of cases, her view of it isn’t going to be useful, is it? If it was cases that are, by whatever standards, in point, then you will presumably refer us to them and we will then look at what the Court said and it will no doubt command our interest and receive, but this is a very peculiar way of going about that to my mind, unless they quote large passages and this was the only way of finding them or something, I don’t think we need this young student’s overview.
MR MAYER: I would make two points then my Lord from this source, the first is that the American Courts have not sought to restrict those who intervene to moments when danger is either imminent or present. They in effect have upheld the proposition that in the cases where danger is constant then one can do what one can when one can.
LORD PROSSER: If there is somewhere where a Judge says that then refer us to that.
MR MAYER: Yes, on page 306 there is a case called People v Condley. 69 Cal. App. 3d. 999., 138 Cal Reporter 515 (1977). This is the Californian Court of Appeal “emphasised that the threatened danger need not be imminent. The necessity in Lovercamp is not like the classical paradigm of absolute necessity where the prisoner escapes to save his life from immediate danger of a prison fire. Absolute and imminent necessity are rare, and even rarer is prosecution under such circumstances. Unlike duress, under Lovercamp the threat is in the ‘immediate future’…Duress requires an imminent threat to one’s life”.. They go on to say in the last three lines on Page 306, “However, neither lay nor legal definitions measure imminence in seconds or minutes, or even in weeks or months”. That seems to be the view, the summed up view.
LORD PROSSER: Summed up view by a law student. We really do need to be shown material which is of persuasive authority and you certainly can’t take it that on the issues that everyone who is writing a JD thesis or whatever assesses matters correctly. You don’t know, it is an elementary professional standard.
MR MAYER: If I could just stay with this article for a moment and turn to page 317, there the case of Berrigan is discussed. What happened in Berrigan was there were four stages, there was a trial, there was the Superior Court Appeal, there was the State Court Appeal and the US Supreme Court, it didn’t get as far as the US Supreme Court, but the Defendants were convicted at the trial, the conviction was overturned at the first level of Appeal, but was re-overturned as it were at the State Supreme Court level.
LORD PENROSE: I missed the reference to the page.
MR MAYER: 318 my Lord. This was the case mentioned by my learned friend Mr Moynihan, in America it is known as the Ploughshares Eight Trial involving the carrying of blacksmiths’ hammers and other materials to do damage to property within the General Electric, systems plant in Pennsylvania and, just as in the instant case in the Court below, largely the facts are agreed, but parties sought to defend themselves according to Pennsylvanian justification statutes and they presented witnesses, just as in the Court below, to testify, but the expert testimony was excluded by the Trial Judge and the jury found them not guilty. “On Appeal the appellant Court reversed the conviction for several reasons, including the following: ‘The lower court erred when it ruled that appellants could not introduce the evidence that they needed to show the objective reasonableness of their action”. Now that’s the very phrase which was used in the Court below and which I think I have said on previous occasions was the standard to be applied in this country before anyone can avail themselves of the defence of acting wilfully but not maliciously. The majority disagreed with the dissenting judge and there’s a speech which says that, “It was argued that to avail themselves of the defence the Appellants must be able to say that their actions could totally avert nuclear war. We will not hold them to such a burden. Appellants must show that their actions could reasonably have been thought necessary to avert a public disaster….Surely the use of the weapons, the components of which were damaged by appellants, would cause a public disaster on the order of a ‘conflagration, flood, earthquake or pestilence”. The citation is given earlier, that in my submission is a parallel language with the language used by Hume and Lord Justice General Rodger in Moss against Howdle, to which I will turn in due course.
LORD PROSSER: I don’t suppose it is necessary to worry about Berrigan, Hume is a bit more apposite.
MR MAYER: Indeed, indeed my Lords. But in a case like this where I was aware that these cases had been cited from this article in the Court below I expected your Lordships might want…..
LORD PROSSER: It’s just whether you are adding anything. As one moves round the table one doesn’t want to hear things again, we have got a fairly full picture of what was said by Mr Moynihan on Berrigan, I don’t know whether you are really adding to that, but anyway to pick up a phrase, “Their actions could reasonably have been thought necessary to prevent a public disaster”, and you say this could be applied to the facts of the present case.
LORD PENROSE: At what level, I thought you had told us about two levels of Appeal, which Court is being described here?
MR MAYER: The first one.
LORD PENROSE: And that was the one which was overturned next time round?
MR MAYER: It would appear it was overturned for different reasons.
LORD PROSSER: That’s why we should look at the authority if you are trying to make anything of it, we don’t know its status in the view of the higher Court, do we?
MR MAYER: I can tell your Lordships that my learned senior may wish to develop the matter further.
LORD PROSSER: We don’t need to hear you just now, if he wants to say something he will be properly prepared when he does so.
MR MAYER: My central purpose is to get to the criteria which the Court have laid out and at page 326, on a summation of the elements of the necessity of events when citizens intervene, and I would commend those six criteria to this Court.
LORD PROSSER: You mean you submit they are sound?
MR MAYER: Yes, I do. There is an analysis of each of one of those which may not, standing your Lordship’s comments, be useful to look at and so I think I can end that part of my submission there. My Lords whilst I am still on Black Letter Law, I have written on page 6, number 8 at the top of the page, ‘for completeness see a case called Operation Dismantle Incorporated v The
Queen, this is a decision of the Canadian Supreme Court and it is simply there out of completeness, I was aware of the case.
LORD PROSSER: You don’t seem to be adopting what I would refer as an orthodox approach, either you are going to refer us to this case or you are not. The fact that it is there in your page of paper is nothing, it is only of use to us if you want to make some submission about it.
MR MAYER: Well, I was just about to make a submission.
LORD PROSSER: If you are referring us to it where is it?
MR MAYER: It’s in the Second Respondent’s second bundle, green flagged letter II. I direct the Court’s attention to this case because it is a decision of the Supreme Court of Canada and as far as I can discover it is the only occasion on which the Supreme Court of Canada has had dealings with the same matters under consideration. The case was taken purely on the point of injunction and declarator and it is for that reason that I don’t expect it will assist your Lordships very far. What happened was that the Plaintiff organisation, together with the Trade Unions, challenged the decision of the Government of Canada made pursuant to an agreement with the United States to promote the testing of the low launch cruise missile in Canada, on the ground that it would infringe the right to life and the right to security and person guaranteed to their members and other Canadians by Section 7 of their Charter of Rights and Freedoms. They sought an injunction to prevent the testing of the cruise missile and a declarator that the decision to test it was unconstitutional and they wanted damages. The Defendants applied to strike out the statement of claim and dismiss the action on the ground that it did not disclose a reasonable cause of action and it was with that question which the Court was concerned.
LORD PROSSER: The action had been dismissed?
MR MAYER: Yes. The principal allegation was that the testing posed a threat to the lives and security of Canadians by increasing the risk of nuclear conflict and violated certain rights to life and security provided by statute. The submission under Section 7 in particular turned on actual increase in the risk of nuclear war resulting from the Federal County’s decision to permit the testing of such cruise missiles. This has parallels with deployment in my submission, so to succeed at Trial….
LORD PROSSER: It might well be very interesting, but just how remote you can be from actual use and yet say, what I am doing is covered by these rules about prevention in total. So it might well suggest that, you can’t just go back and back and back and back and say that every act which interferes with anything, which in some way contributes would do, so where does it deal with….?
MR MAYER: Well, what the Court held, as far as I can see it’s mostly about the evidence, what the Court held, in the second paragraph down on page 482, was that “Section 7 of the Charter cannot reasonably be read as imposing a duty on the Government to refrain from those acts which might lead to consequences that deprive or threaten to deprive individuals of their life and security of the person. A duty of the Federal Cabinet cannot arise on the basis of speculation and hypothesis about possible effects of Government action. Such a duty only arises where it can be said that a depravation of life and security of the person could be proven to result from the impugned Government act”. It was for reasons such as that that I set out my earlier analysis about having to identify exactly what the Government was doing, exactly what the effect would be and so on. The Court goes on to say, “The reluctance of Courts to provide remedies where the causal link between an action and the future harm alleged to flow from it cannot be proven is exemplified by the principles with respect to declaratory relief. The preventative function of the declatory judgement must be based on more than mere hypothetical consequences; there must be a congnizable threat to a legal interest before the courts will entertain the use of its process as a preventive measure”. So that was the view taken. As I have said, it appears to me that the case is mostly concerned with whether or not the Plaintiffs prove the various factors.
LORD PROSSER: Later on, “A similar concern with the problems inherent in basing relief on the prediction of future events is found in the principles relating to injunctive relief. The general principle with respect to such injunctions appears to be that there must be a high degree of probability that the harm will in fact occur”. So you have got to relate the damage done by your client and the other Respondents on this vessel to something harmful on a high degree of probability that it would occur and that somehow what they do has some significance in making that not occur or less likely to occur, that’s the construction of it, is it?
MR MAYER: Yes, and if….
LORD PROSSER: Well, in order to deal with this question of necessity won’t one have to ask oneself that kind of question about the closeness of the relationship between what you see as a criminal act of the Government and what the Crown see as a criminal act of your client?
MR MAYER: Yes.
LORD PROSSER: And at some stage are you going to turn to that as a sort of factual matter, just what significance the steps taken by the Respondents have in affecting the future and the criminal acts that they foresaw?
MR MAYER: As this is not an Appeal my Lord I have purposely kept away from the facts from the Court below, because I don’t want to give my submission the character of one which would be made in an Appeal on their behalf.
LORD PROSSER: No, but I mean there is the periodics mentioned before. That the questions we asked have got to be derived from what happened at the Trial. You can’t argue we should answer that if they are in favour of you and we should not answer that if they are not in favour of you and if it is proper for us to answer that at all. If we are to answer question 2 at all we have to do so in context of whether or not it arises in the present case. You are not going to address us at all on the way in which the sort of things the Respondents did might or might not relate to or have a bearing upon the Government’s threatened use of using Trident. I mean I haven’t read the rest of your script, are you going to address us on that?
MR MAYER: I hope to get there, I do hope to get there.
LORD PROSSER: That’s fine.
MR MAYER: In my submission where your Lordship stopped reading, the case is not set, but it does provide us with that view of the necessary connection between, on the one hand, the Defendants as they are called, and reaction of Government.
My Lords may I move on to Chapter B in this part? It may well be said or argued that the deployment of all Her Majesty’s forces is entirely a matter for the MoD because these are ‘acts of policy’ performed in the course of relations with other States, and therefore these are exercises of a sovereign power and the assertion can be made of lawful authority for taking such action. But in my submission whilst that may be true perhaps of all Her Majesty’s conventional forces, but for Trident, it’s not true because Trident can only do two things. It can only either threaten other nations with mass destruction or in fact cause mass destruction. But either way neither of those two things are lawful. My primary submission being that any Government can confer lawful authority upon itself for committing a crime, particularly a crime against humanity. That was what happened in Nazi Germany and, as your Lordships will be aware it was also the view taken by President Nixon when the President said something, it seemed to be above the Constitution.
LORD PROSSER: You are not propounding that as a legal proposition at all?
MR MAYER: For present purposes my Lord I particularly adopt what is said by my learned friend Mr Moynihan on when the International Court of Justice said never, in dealing with transgressable loss of humanity, it meant never, and anything less than never leaves open the prospect of mutually assured destruction. So that absolute position is the one which I say prevails.
LORD PROSSER: Are you essentially adopting all that was submitted by Miss Zelter and Mr Moynihan?
MR MAYER: Yes.
LORD PROSSER: You are really starting from that, adopting everything that was said by either or both of them?
MR MAYER: Yes.
LORD PROSSER: And so this as it were further glosses on that?
MR MAYER: Yes, my point is this is my ‘official but not legal’ distinction, it is official but it is not legal. Point two is that there perhaps was a time in the days of Mortenson against Peters when Parliament sovereignty meant exactly that, subject to any treaties which might have the full force of domestic law. What Parliament did, or any of its officers did, just wasn’t judiciable, wasn’t open for argument. Of course that is not the case in the modern world.
LORD PROSSER: I don’t understand that proposition, the United Kingdom is legally bound to be a co-operative State, where shall I find that?
MR MAYER: That’s my summary of the whole effect of the diminution of Parliament sovereignty.
LORD PROSSER: If it is legally bound it must be some specific proposition. You are just saying these are all conventional matters, that we have agreed to a number of things which looked co-operative.
MR MAYER: Yes.
LORD PROSSER: But until one agrees a given area one is not bound by that, I don’t understand that, legally bound to be a co-operative State.
MR MAYER: I think I am beginning to regret….
LORD PROSSER: Don’t spend time on it if it doesn’t merit time.
MR MAYER: My Lords the point was made in Attorney versus Nissan 1969 All. E.R. (Vol 1) P629. that’s green flagged PP. The Court was concerned with whether or not a defence of ‘act of state’ could apply in a claim for compensation against the State. Essentially Nissan were suing for damage done by soldiers and the question was whether British forces were agents in fact, so as to make their actions the acts of the Cyprus Government and the Court held, as your Lordships will see at P629. “In respect of events occurring between certain dates the actions of the British forces were not of such character that the Court had no jurisdiction to entertain the action, since the actions did not amount to acts of state”. All sorts of reasons are given. My purpose is to distinguish between….
LORD PROSSER: Actually Lord Reid, he dissented on the reasoning, he was at one on the conclusion.
MR MAYER: Yes my Lord. This my Lords is the example given by the House of Lords and the distinction which has to be drawn between, for example the political decision to defend the realm and the way in which the realm is defended. Lord Morriss of Borth-y-Gest at original page 641, beginning at original page 641, at the bottom of that big paragraph, “It would I think be helpful if, when a plea of act of state is being advanced, some clear indication is given as to the exact basis on which the (inaudible) is said the be an answer to a claim”. “I would hope not” says his Lordship, and then they go on to deal with what acts were done.
LORD PROSSER: It raises quite interesting questions that, doesn’t it. We touched on them I think earlier on. If the United Kingdom is committing a wrong as a matter of international law that is essentially a wrong committed against other like persons at international law. The States that have actually, by custom, agreed to be bound by this particular rule, and so Britain would be the United Kingdom, would be wronging these others by breaching that existing rule. But when you come down from that to the municipal Courts, how does it work? This relationship that is really a relationship between States in which one is or is not in breach of one’s obligations to other States. How does that work when you bring it down into United Kingdom Courts, because at first sight at least that doesn’t make it a crime, it makes it illegal no doubt at international law and if it ever comes up in British Courts it will be recognised as illegal as international law. But it’s not evident to me how that transposes into being a crime by the State within the domestic system. Again it’s one of these points which arose in the Hutchison case, as to whether it really does come down as a crime or whether ‘unlawful’ has some broader sense. I raised this earlier on with either the Crown or Mr Moynihan. I can’t remember, in a rather different way, it doesn’t transpose naturally into being a crime, does it?
MR MAYER: It comes down like this my Lord. The political decisions of States are acts between each other, as it’s said. It’s not a matter for the municipal Courts, however in my submission if the way in which a particular State behaves in pursuance of its political decision, can be demonstrated under, for instance, international humanitarian law, to be a crime. Then such acts as constitute a crime can be prevented by either right or necessity.
LORD PROSSER: But you have to bring them down to the level of being crimes in our own law.
MR MAYER: No, it can come down, if the act is illegal, but not criminal, it’s civil, then they are justiciable acts.
LORD PROSSER: I thought you were asserting that the Government’s crime in international terms was a crime at Scots law, you are not asserting that?
MR MAYER: I am my Lord.
LORD PROSSER: Well that’s what I mean, you have got to bring it down to that level for your argument, to say that it is a crime under Scots law, and that’s what I was trying to raise, how you transpose from it being unlawful, illegal or even a crime at international law, or how you get down from that to the level of it being a crime in our own law.
MR MAYER: The gateway in this case is customary humanitarian law which is part of Scots law, it is all part of Scots law.
LORD PROSSER: I follow that. It may be that if you haven’t got prepared submissions on this it’s a matter to speak about by someone further down the line, or next to you, but it doesn’t really seem self-evident that a crime at international level becomes a crime ipso facto at Scottish level, even if it is true that international law is part of our law, but if you haven’t got prepared submissions on that I doubt whether it is worth doing on the hoof.
MR MAYER: I haven’t my Lord. I would say though that another gateway might be in fact the Statute such as the Geneva Conventions Act.
LORD PROSSER: But we are here concerned with customary law and common law. No-one is suggesting these things have been brought in by – I think that confirms my views, and better not do it on the hoof.
MR MAYER: So in general this is an example of how the ways in which an ‘act of state’ can become justiciable, I wondered, having cited that case, whether there was any discussion by, in the constitutional and administrative law, on the point, and your Lordships will see at numbers 4 and 6 I cite Professor Mitchell’s Second Edition on Constitutional Law and Professor Bradley’s Tenth Edition on Constitutional and Administrative Law. I regret my Lords that in my submission there is no discussion in any of these citations about the distinction between a policy, a political decision to defend the realm and the way in which that is done. The prerogative is discussed by Professor Mitchell from page 172 of his book and all that really springs out at one, in my submission, is at page 174, after mention of for instance the Burma Oil case which your Lordship in the chair mentioned, “At least one historical lesson remains true, however. What is clear is that prerogative cannot mean a power above the law” above the law”. He goes on to develop the historical view and so on. That’s really all he says about it. He says what the prerogative is. It doesn’t assist us terribly much. Professor Bradley, I trust your Lordships see the citations there, Mitchell is green flag bb and Bradley is green flag cc. Bradley discusses the ‘act of state’ at 316, beginning by telling us what it is, “An act of state has been described as an act of the executive as a matter of policy performed in the course of its relations with another State, including its relations with subjects of that State”. So that would seem to indicate the idea that the ‘act of state’ is between States. “Unless they are temporarily within the allegiance of the Crown. As this description suggests the term ‘act of state’ may be used in a number of senses. In its broadest sense ‘act of state’ is used to describe an ‘exercise of sovereign power’. Secondly, ‘act of state’ may be used to describe the exercise of prerogative power “. So it would appear that the learned authors take the view that the Courts decide on the facts first and then see whether the ‘act of state’ applies. A sort of Proof before Answer approach and “A plea of act of state on the other hand is an assertion that the Court does not have jurisdiction to determine whether the act was performed with lawful authority. Where a plea of ‘act of state is successful, the Court does not come to any decision as to the legality or illegality, or the rightness or wrongness, of the act complained of; the decision is that because it was an ‘act of state’ the Court has no jurisdiction to entertain a claim in respect of it. It is in this third sense that the term ‘act of state’ is used in this chapter”.
LORD PROSSER: It rather suggests that, these expressions of view, we shouldn’t consider whether what the Government was doing was illegal. We should be asking ourselves whether it was legal or not legal, if it was an act of state or prerogative.
MR MAYER: As I read the learned authors they say the Court had to look to see whether there was purely an act of state or whether, as a matter of fact, matters went beyond that into the justiciable area, because an act of state seems to be a complete defence, but it does not apply when the way in which the act of state has been carried out amounts for instance to the way in which property was destroyed in Attorney General -v- Nissan. Wanton destruction would not be an act of state.
The other authority which I looked at on this point my Lords was number 6, which is a new Production in Volume 3, number 5. The learned authors review the prerogative powers at chapter 5-037 and set out previous limits of reviewing such prerogative power, but in my submission it’s really not helpful to go through the historical position. It may well be….
LORD PROSSER: Is there something you are referring to in it or not?
MR MAYER: Yes my Lord. I have photocopied the whole chapter 15.43 at page 180 of the book, 44 more accurately. They tell us that, “What remains today of the prerogative powers which Lord Roskill identified as not being amenable to judicial review in the GCHQ case. There will be some questions of ‘high policy’ such as the making of treaties, the defence of the realm, the dissolution of Parliament and the appointment of Ministers where the Courts as a matter of discretion do not intervene, because the matters are simply not justiciable”.
LORD PROSSER: He goes on, or the authors seem to have regarded the defence of the realm, one of the ones that wasn’t justiciable.
MR MAYER: Yes, but I accept that the political decision to defend the realm is not justiciable, what I do not accept is that the way that is done contravenes law….
LORD PROSSER: Surely it is not saying a simple decision to defend the realm is not justiciable, he is talking about specifics when they dissolve Parliament, who to appoint as Ministers, what treaty they make and how to defend the realm.
MR MAYER: Well, all of these examples are yes or no, appoint or don’t appoint, dissolve or don’t dissolve.
LORD PROSSER: Because it raises questions of when and whom.
MR MAYER: At all events the learned authors don’t give us a solution to whether or not to defend every act which can be said to be in defence of the realm is not justiciable, in my submission that could not be a fair reading because Attorney General -v- Nissan in fact tells us so. So I adhere to my distinction between a decision for instance to go and defend a particular place and the way in which that is done.
LORD PROSSER: It’s an interesting passage either way I suppose.
MR MAYER: Coming now my Lords to the demonstration, from the terms of Article 6 of the Principles, that a United Kingdom Government policy of deterrence is a crime against humanity. This springs of course from the way in which the realm is defended. I pose the question my Lords, ‘at what stage can this policy of deterrence be equiperated with a threat and thus be a crime’ and pose the answer that ‘there is language used by those in power which tends to indicate that threat is what is meant’ and the language of threat then appears. I was promised a little more substantiation of A, but that has not appeared, so….
LORD PROSSER: We are not here to hear evidence anyway.
MR MAYER: No, so I pass to B my Lords, which is Roder, Volume 1B. This is the 1998 Strategic Defence Review presented to Parliament by the Secretary of State for Defence in July 1998 and there is a whole lot of stuff about procurement until we reach chapter 4, which is about deterrents and disarmament at paragraph 60.
LORD PROSSER: I am just checking the list, we have already heard about the letter from the Ministry of Defence in September, we have heard of the deterrence doctrine, we have heard about strategic review, those have all been noted already and in relation to comments by the Foreign Secretary in relation to Zurich, are we going on to any new ones? I am not criticising you, I just want to be sure where we are going.
MR MAYER: I am concerned with the language of threat.
LORD PROSSER: Well that’s the context in which I have my notes, okay.
MR MAYER: Paragraph 60 opens by saying, “Deterrence is about preventing war rather than fighting it”. I immediately ask how is that supposed to be done? :All our forces have an important deterrent role, but nuclear deterrents raise particularly difficult issues because of the issue of nuclear war. The Government wishes to see a safer world in which there is no place for nuclear weapons. Progress on arms control is therefore an important objective of foreign and defence policy. Nevertheless, while large nuclear arsenals and risks of proliferation remain, our minimum deterrent remains a necessary element of our security”. Well the first thing to note in my submission is the use of the words “Government wishes” and compare what might have been done in practice with the call by the ICJ to bring abolition to a conclusion and the answer would be ‘nothing’. 61 says that, “Rigorous re-examination of our deterrence requirements. This does not depend on the size of other nation’s arsenals but on the minimum necessary to deter any threat to our vital interests”. I should point out my Lords that nowhere in this document does one find any claim that the State might be in danger of obliteration. 61 discusses the day to day operating posture. 62 says, “Trident is our only nuclear weapon. We need to ensure that it can remain an effective deterrent for up to 30 years. This is why we need the force of four Trident submarines”. 63 says, “We must judge our weapons requirements against the worst circumstances that we might face with Trident’s life, however remote they may seem today”. That I accept would be wide enough to include “annihilation of the State”. “The credibility of deterrence also depends on maintaining an option for a limited strike that would not automatically lead to full-scale nuclear exchange”. That is a rather dangerous position in my submission, taking into account Trident’s greater accuracy than Polaris. The review concluded that we “need a stockpile of less than 200 available warheads. This is a reduction of a third from the maximum of 300 announced by the previous government and represents a reduction of more than 70 per cent in the potential explosive power of the deterrent since the end of the Cold War”. 65, at the bottom of the page mentions the phrase again, “Maintain a credible deterrent”. And we must look elsewhere my Lord to find what is meant by this credible deterrent.
In 1993 my Lords the then Defence Minister Malcolm Rifkind, speaking in Kings College, London on the 16th of November said, in the document which is also part of the new bundle number 6, It has a stamp on the top of it, which all speeches given out by Government Ministers seem to contain. It is headed “United Kingdom Defence Strategy Continuing Role of Nuclear Weapons?”. I have been careful to copy the whole speech my Lords, but I can take your Lordships, for my own purposes, to paragraph 25 which is about, just over halfway through the paper. Paragraph 25 begins, “From our side of the equation I have to say that it is difficult to be confident that an intended deterrent would work in the way intended in the absence of an established nuclear deterrent relationship. Would the threat be understood in the deterrent way in which it was intended and might it have some unpredictable and perhaps counter productive consequence”. I pause there my Lords. It appears, I hope I don’t necessarily misrepresent Mr Rifkind’s language, but he used threat quite categorically, ‘the threat’, uses the definite article, “be understood in the deterrent way in which it”, the deterrents, or the threat ‘was intended’, and that in my submission explains the intention is to deter by way of threat.
LORD PROSSER: Well the reference to threat is obviously a reference back to the previous paragraphs, threatening to use, in the third line of paragraph 24 and so on, it’s perfectly clear what he is talking about.
MR MAYER: He goes on, From our side of the equation I have to say that it is difficult to be confident that an intended deterrent would work in the way intended, in the absence of an established nuclear deterrent relationship. Would the threat be understood in the deterrent way in which it was intended; and might it have some unpredictable and perhaps counter-productive consequences? Categoric answers to these questions might be hard to come by and in their absence the utility of the deterrent threat as a basis for policy and actions would necessarily be in doubt. Taking another angle there is sometimes speculation that more so-called ‘usable’ nuclear weapons – very low-yield devices which could be used to carry out what are euphemistically called ‘surgical’ strikes – would allow nuclear deterrence to be effective in circumstance where existing weapons would be self-deterring. I am thoroughly opposed to this view. The implication of such a development of a new war-fighting role for nuclear weapons would be seriously damaging to our approach to maintaining stability in the European context, quite apart from the impact it would have on our efforts to encourage non-proliferation and greater confidence outside Europe. This is not a route that I would wish any nuclear power to go down”. Then he goes on to contrast the situation in Europe and he goes on to discuss other places. That passage my Lords demonstrates that threat is very much part of deterrence.
LORD PROSSER: It is just the linguistical part of it.
MR MAYER: If that language came from the law student then one could ridicule the law student or whatever they might be, but this was the Defence Minister who was in a position to know what the policy was at the time.
LORD PROSSER: Of course it’s a question of what threat means in each context. Of course you can translate from threats like deterrents into threats like threat, the question is whether that is a threat which is to be equiperated with actual use.
MR MAYER: Yes, well, that he uses the phrase “deterrent threat” as a basis for policy and action, then in my submission threat is there, is central to the policy and action and further language connected with threat is to be found in my next document which is again part of the third volume allowed this morning, which is number 1. This is the Secretary of State for Defence, George Robertson, in Hansard, Sixth Series, Volume 315, on the 8th of July 1998, in the context of the spending policy on Trident. If I can direct your Lordships to the column on the right of the page of text. The Secretary of State says in the second paragraph, “In terms of the nuclear deterrent the world has moved on, we are building trust and relationships, we should be much more open, much more transparent and the rules of the Cold War should not necessarily bind us at times such as this, that is why we are opening our books, making it clear what we have and by doing that making absolutely certain that they know that the deterrent is still there, still credible and no-one should mess with us as a consequence”. It may be my Lords, I am not privy as to what time of night or day this was said, but the Secretary of State seems to say, well, we are a good deal more friendly with the Russians than we used to be, but everyone else should make absolutely certain that the deterrent is still there, still credible, whatever that means, and no-one should mess with us as a consequence. That is the kind of language which we hear every day in the criminal Courts and in my submission when taken together with the other examples which might be a little more formal and clearer, it’s clear that the deterrent is only credible if it threatens.
The next part of my submission has in fact been covered at other stages, the nature of the crime and the indiscriminate destruction being inhuman and thus struck at in various ways. I would simply refer the Court again to the ICJ opinion 78 and 79 and remind the Court that indiscriminacy of effect also breaches the law of proportionality as we are advised by the Court at paragraphs 29 and 30.
My Lords in coming towards the end of my submission I would respectfully refer the Court to the Journal article written by Lord Murray, Volume 3, number 7. This is contained in other people’s Productions. The Crown referred to it and perhaps Miss Zelter did also, but there was a question mark my Lords over the authenticity of the Production which we saw earlier. This one is a judicial copy of the original which contains the footnotes and I hope that it is absolutely authentic.
My Lords the learned author Lord Murray deals, on page 3 of this version with the international law and reminds us that “despite any appearance to the contrary international law, is real law, not just international morality or international expediency. It may be less developed than domestic law, but it has a genuine and growing force of its own. To ignore international law is to ignore a factor which….”
LORD PROSSER: Can we get to the bit that bears upon the law for this Court?
MR MAYER: There was a question arose by, I think by your Lordship in the chair, about the earlier opinions of the ICJ and what status they may have, that is dealt with at page 4 in the heading “Earlier Opinions”. Lord Murray tells us that an advisory opinion was given in 1949 and sets out what it was about and in 1971 there was another one on the validity and determination of South African mandate over a piece of territory. Over the page at page 5 the Court give another one, in 1975, on a Western Sahara question, and about halfway down the page in the new paragraph he says, “These cases may illustrate the authority and ultimate success oft he world court’s advisory opinions, even where wider issues of political conflict arise. They can be a focus and stimulus for reform”.
LORD PROSSER: The point there is they express an opinion at some stage and that ultimately that may become incorporated into customary international law, is that the idea?
MR MAYER: Yes my Lord, the author says for certain that a Judge Higgins, the British Judge accepts that 95 per cent, I can’t find this incidentally, that 95 per cent, I know the passage well, “Of the ICJ advice has been adopted into law”.
LORD PROSSER: The point I was focusing on is his use of the word ultimately. If it doesn’t happen there and then it doesn’t happen, ipso facto. It has what he calls the success of eventually ultimately becoming such law.
MR MAYER: Yes. At page 2, in the middle of the page two preliminary points are made, the first, as Judge Higgins pointed out, “95 per cent of the court’s decisions have been implemented despite the lack of effective enforcement power. Secondly, an advisory opinion of the court is not to be dismissed as just a matter of opinion, to be disregarded if you do not agree”. The author is then critical of the way in which defence reviews have been carried out by doing just that, namely to ignore the ICJ opinion. The author takes us at pages 6 and 7 particularly to what the Court held and on page 7, about one third of the way down, a new paragraph, “The Court I think rightly proceeded on the basis that threat is equivalent to use”. I would certainly adopt that.
LORD PROSSER: The next sentence is I think the kind of point that I was getting at earlier as perhaps crucial, that one needs to look at the context and what he says is that, “In this context threat means a practical warning directed against a specific opponent”. Now that is using threat in the sense which one uses it in relation to assault and the like, it means a practical warning directed against a specific opponent. Now you, I think you were saying that you accepted something, is that what you accepted?
MR MAYER: Yes, I do accept that as well. I would remind the Court….
LORD PROSSER: You do accept the second sentence of that paragraph?
MR MAYER: Yes.
LORD PROSSER: And therefore you would accept the next, “would not alone constitute a threat at law”. You accept that, do you?
MR MAYER: No, I do not, because I do not know what is meant by a routine Trident submarine patrol, I cannot accept that is right because of what the experts in the Court below said, namely that when Trident is on patrol it is upon a hair trigger, 15 minute trigger, it carries….
LORD PROSSER: It can use it instantly and so on. But look at the context of Lord Murray’s comments, you see the first word of that sentence is “So”, so he is saying something following from the previous sentence which you did accept, “Practical warning directed against a specific opponent”. Now obviously that is being contrasted with control of the kind you have described, where they could react instantaneously, but there is no practical warning directed against a specific opponent. You acknowledge the contrast at least?
MR MAYER: I don’t go as far as that because I would need to say what is really meant by routine.
LORD PROSSER: I am not pressing you on that second sentence, but you do accept that threat means a practical warning directed against a specific opponent in this context?
MR MAYER: Yes.
LORD PROSSER: I interrupted you, you were about to go on to something else.
MR MAYER: Yes, as to what might or might not be the law of this country. He tells us about treaties and conventions stemming from the declaration of St Petersburg of 1868 to The Hague and Geneva Convention, sets out three Principles. These I think have been canvassed by my learned friend Mr Moynihan. The first is that the armed forces of a State may not target civilians, hence they must not in general use weapons which are incapable of discrimination between military targets and the civilian population. The second is that it is forbidden to use inhumane weapons. That stems in my submission from the Nuremberg Principles which say inhumane treatment which is designed to cause unnecessary suffering to combatants, but obviously also to any civilians caught up in combat. The third Principle is the famous Martens clause from the 1899 Hague` Convention which asserts that “apart from international agreements, civilians and combatants alike remain under the protection ‘of the principles on international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The principles of the Martens clause are restated in Art. 1 (2) of the Geneva Protocol 1, 1977 ratified by this country at the end of 1977.” We are told that Protocol 1 sets out the basic rules governing the conduct of hostilities and they are set out there.
Moving to the next paragraph, “As can be seen from the foregoing, international humanitarian law does not preclude an attack upon a genuine military objective because death and damage may be visited upon the adjacent civilian population and civilian objects, even on a very large scale, provided that it is not readily avoidable, is proportionate to the size of the military strike and is kept to a practical minimum. If it falls within these parameters a military strike which might otherwise breach humanitarian law is lawful. But this protection is not available to the military for a direct attack on a civilian population or for any use of inhumane weapons”. That is where Trident falls foul, because it would be impossible to use Trident in a legal way against that background. “These then are the Principles on which the lawfulness of the proposed use of a particular weapon is to be assessed. It is to be noted that in so far as they consist of international customary law they are part of the domestic law of this country.” I say that the Nuremberg Principles are also part of the domestic law via the same route.
LORD PROSSER: I am sure it has been covered, because I haven’t look back at this in the interval, “International humanitarian law does not preclude an attack upon a genuine military objective because death and damage may be visited upon the adjacent civilian population and civilian objects, even on a very large scale”. Then the proviso that “It is not readily avoidable, is proportionate to the size of the military strike and is kept to a practical minimum”. Do we know that Trident couldn’t be used in that way if it was used, for example to take out a military nuclear launching establishment, without a significant military population in the area, what’s the source from which we know that it couldn’t be used in that way if it was attacking something in central Europe or central somewhere else.
MR MAYER: Your Lordships will recall the Judges of the International Court of Justice discussing low yield strike and it was accepted eventually that Trident could not, is not capable….
LORD PROSSER: Accepted by whom, I thought we were talking about the ICJ?
MR MAYER: It was accepted in the submissions before the ICJ.
LORD PROSSER: They were like us, they were caught trying to look at the matter, we are trying to look at the matter, I am not asking this ice cold, I don’t know, where is the material which we would – that Trident could not be used in that way. Is that covered by Lord Murray’s expression?
MR MAYER: I would have to go back to the ICJ.
LORD PROSSER: Perhaps someone else can pick it up. I don’t see how the ICJ provides us with it, it is just another Court doing what we are doing. Surely there is an answer to this question.
MR MAYER: It’s my learned friend Mr Moynihan’s factual point number 6 and the evidence of Professor Rogers, pages 12 to 13 and 30 to 32 and Professor Boyle at 70 to 71, 106 to 107 and see also 103, 110 to 111 and 117 to 118. I am now turning my Lords to page 7 of my typed script, down at the bottom, Article B. I am now turning to the question of Scots criminal law and the principle of civil intervention in times of necessity. It may be, standing all that has been said, that I can deal with these much more quickly than I hoped. Your Lordships will see that my approach is to build it up from what Hume said about what went on in times of great civil commotion via, chronologically the cases, Scots law cases on necessity, to Moss against Howdle, but I think perhaps we can take your Lordships back to Moss against Howdle. The salient passages in my submission are “Danger invites rescue”. “So Scots law has never been so mean spirited as to confine the defence of self defence to situations where the accused acts to save himself”. Your Lordships will recall discussions in Moss and Howdle about Lord Hailsham and about how his Lordship seemed to accept that all of the defences, as it were, were really to be categorised together. My submission is that as it was in the Court below, that Scots criminal law has only developed to the extent necessary to deal with drunk drivers and irate shopkeepers. so far as necessity is concerned, there has been no discussion about the scope of necessity in the nuclear context. That’s partly why I think the American perspective might have been useful, but my Lords it’s clear from what Lord Roger said in Moss against Howdle that the scope of companionship would require to be considered in this context and, as I say, in the next bit that is not necessarily to be done in the Atkinian sense, that’s Lord Atken.
If I can give your Lordships some indication, I think I will now finish today. It has been pointed out to me that it was once mandatory a very long time ago, in Scotland, to intervene in order to save vulnerable people and if it is it’s not too late in the day I would direct your Lordships, though it might be the oldest authority ever cited in these Courts, it’s a new Production, can be also found in Volume 1 of the Second Respondent’s Productions number 1.
LORD PROSSER: Number 1 in the bundle?
MR MAYER: Volume 1. I shan’t take more than a minute of your Lordships’ time on this. From Section 29 of this document onwards it is said to be a manmade law. Now your Lordships will see that this is a translation of some very ancient Scots law indeed, I am concerned with paragraph 35, which seems to make it mandatory to step in and save vulnerable people.
LORD PROSSER: I suppose that’s perhaps what the Government think they are doing by having the deterrent. There will be people in this country who saw themselves as vulnerable to attack and who would be grateful to them, others would take the opposite view and it’s a very difficult law to apply if each person’s vulnerability is decided upon by another and finds oneself being saved from that which one did not regard as a hazard.
MR MAYER: I can pass from that ancient authority my Lord. I have cited all of the Sheriff Court examples of necessity, but don’t think it necessary to take your Lordships through these, they are discussed in Moss against Howdle, for what they are worth. I have touched on the point that the statute which is applied in most of these summary cases, well, all of the summary cases turns on the phrase “reasonable excuse”, so I shan’t repeat myself.
The English law which may be of interest to your Lordships is to be found in the Criminal Law Act of 1967, Chapter 58, Section 3 and there is an identical provision in the law of Northern Ireland which is….
LORD PROSSER: If we can identify the Scots law, you are saying the English law is the same?
MR MAYER: The English statutory law is the same and there is a discussion by Professor Williams in his Criminal Law book which really accords with our own law.
LORD PROSSER: So one doesn’t need to go through – they simply accord.
MR MAYER: They do accord my Lord, yes. However it’s accepted by Professor Williams, your Lordships will see the Criminal Law Acts being produced in the second chapter of Roder, with green flags which are Bb and Professor Williams’ book is reproduced at Ee. Section 3 of the Act of 1967 provides, “A person may use such force as is reasonable in the circumstances in the prevention of crime, or assisting in the lawful arrest of offenders or suspected offenders or of person unlawfully at large”. And secondly the common law is replaced. The learned author, about two thirds of the way down the paragraph in the general, the first paragraph in the general note says, “It seems clear that the section is intended to afford a wide measure of protection to any person acting reasonably in the prevention of crime, etc”.
LORD PROSSER: What has all this got to do with it, we have got our common law, you tell us that the English statutory law is much the same, the fact is it is statutory law, it is not derived from principle or anything, how on earth can it throw light on our common law?
MR MAYER: It doesn’t.
LORD PROSSER: Well why waste time on it if it doesn’t?
MR MAYER: At page 500 of the textbook the learned author seems to accept, in my submission, right at the end of the passage, that Section 3/1 fails to give guidance on any practical questions and in my submission that’s the problem.
LORD PROSSER: It doesn’t even give guidance to those for whom it is law. If it doesn’t give much guidance to those for whom it is, it is not going to give guidance to those for whom it is not law.
MR MAYER: My Lords I was on the scope of companionship. In my submission the law of Scotland fails us because it is not wide enough. If one follows through the situations mentioned on page 8 of my script 1 to 6, building up from individual to individual up to couple, up to small group, larger group, even larger group, to a town full of people, then I say if the principle of intervention applies against a background of reasonableness then it follows that it must also extend to wider geographical area where people are at real risk from nuclear accident or strike. In my submission it is a matter of logic.
LORD PROSSER: Each of us, if I am my brother’s keeper and my sister’s keeper and I think that they are vulnerable and need protection, but perhaps each of them themselves, they actually, they are their own keepers as well, but it is actually a citizen’s right to look after himself and his own interests and not to have other people intervening in this way. Do you still say that it is the intervener whose right to intervene, that prevails over the right of other people to look after themselves as they see fit?
MR MAYER: My Lord it would really depend, which one is right would depend on which one had the necessary background in reasonableness which I sought earlier today to set out. If one were in possession of sure and certain knowledge that situation X is occurring or is about to occur, but the other did not, the other had for instance a mere feeling about the matter, then the one with the objective knowledge would be right, the other one would be speculating.
LORD PROSSER: And if they have no right to carry on his ordinary life in his own speculative and perhaps happy way because someone who has done a lot probably says, oh, no, you are vulnerable, I am going to lock you up or knock you down or whatever to avoid this risk which you don’t take seriously…..
MR MAYER: They would have every right, every right to lead their life that way.
LORD PROSSER: In that case what you are saying is they wouldn’t, because you are saying the intervener has a right to attack them or whatever in order to abstract them from a danger that they would rather face.
MR MAYER: Not every danger, only threat of nuclear strike or accident.
LORD PROSSER: No, because we are talking about the law of necessity, it isn’t only that it’s any threat to them, let’s assume of a criminal nature, which they are prepared to risk or face, but the know all intervener says, oh no, this must be stopped and I am going to stop you from this, put down your beer and be dragged off out of the danger area. It does require a bit of analysis this, doesn’t it, the extent to which the interviewer has the right to intrude upon the rights of ordinary people. We are not talking about nuclear things here, we are talking about the law of necessity in more humbler situations.
MR MAYER: In humbler situations.
LORD PROSSER: In the humbler situation no right would arise in the intervener, the intervener may take the view that action was necessary and may take that action, the intervener may take the view that action is necessary and may take that action, but the intervener would have to justify their action later in the civil or criminal Court and if they had a background in reasonableness they may establish a defence, but if they don’t then they are just a busybody.
MR MAYER: My Lords at the end of answering the first part of question 2 in this way I pose the question, does Scots law fall short of providing a legal right to intervene in the way envisaged by the Lord Advocate’s question, not in the humble context, but in someone destroying the property of another with a view to – possession, placing and policy, and the answer to that must be no. I have over the page posed the question why not and I say because the legal right stemming from the international law which I hope I have established is specifically designed to meet that very situation, and in any event there is no special areas of life into which a citizen may not venture in times of such necessity. So the conclusion I come to is, if I am right about this legal duty imposed upon people, this very wide international duty, and from it there springs a right when one has gone through the exercise which I have outlined, then if your source of defence is the Nuremberg Principles and these are good enough to prosecute with, then they are good enough to defend with and if asked the question where can you point to this rule of customary international law, then you have to point to those international duties and accept my analysis that in order to perform these duties one must have a right and the nature of the right is in the same context of the duty, it’s international, it’s of humanity, it would prevent crimes against humanity. So if you could point to that, if that’s right, the answer to the Lord Advocate’s question is therefore yes, it’s an unequivocal yes, it’s not a qualified yes in my submission, as has been envisaged, but it’s unequivocal.
Your Lordships will have noticed that there is then in our skeletal answers, there is then a division between the answer I think this sought to provide and a heading called “Justification”. This comes three pages from the end of our skeletal answers. This is really an attempt to deal with some of the knottier problems which arise with language in statutes and the concepts of what is right in law and what is not right in law. Your Lordships will see Forbes and Ross, Speed and White and McDougall -v- Ho cited, these are to be found in Volume 2 of the Second Respondent’s Productions, green flags M, I and U. All I seek to do my Lords is essentially to make the points set out there and when the act is criminal in principle, but justified, one has to get to the root of intention, because obviously maliciousness of act or acting requires mens rea and if there is a bona fide attempt to enforce a public or private right, even if flawed, one has gone through all the exercise and has arrived at the conclusion that intervention is lawful if they are acting bona fide in enforcing a public or private right, there can be no mens rea, that’s I accept dangerously close to saying sincere belief, but it’s not exactly the same thing, I have already accepted that.
LORD PROSSER: That’s further apart than you are suggesting actually mens rea of an act is really rather a long way from sincere belief, isn’t it?
MR MAYER: Yes.
LORD PROSSER: And the ordinary mens rea of doing damage is an intention to do damage whatever the motivation.
MR MAYER: Indeed so. This area has been well covered and it’s impossible to threaten or use nuclear weapons legally and I would refer the Court to Edition of Protocol Number one to the Geneva Convention 12th August 1949 and we have authorities set out there. US versus Goring was a shorthand way of writing the judgement of the Tribunal and that’s all that’s to be understood to mean. The Federal Rules and Decisions was a series of books which we just couldn’t get our hands on, these are American.
LORD PROSSER: You don’t need to tell us about things you are not doing.
MR MAYER: The point from customary international law B is really my two pronged approach to the same conclusion, one is do you have a right and the other is are you justified having exhausted your legal remedies. The next point, locating nuclear weapons in Scotland. Of course theoretically one can see how merely positioning, as it were, something somewhere in Scotland might not be illegal, but looking at the way in which Trident is possessed and used in my submission constitutes constant danger of a wide proximity and the real answer to how Trident is held and used is that it is threatening.
LORD PROSSER: We have covered that one.
MR MAYER: I now come to answer question 3 and question 4 and I can be very brief indeed. I answer question 3 with a no. Any plea based on subjective or emotional ground is no defence at all in a Scottish criminal Court, one must reasonably apprehend real, imminent or constant danger and having taken all reasonable steps within the law to alleviate it, so that’s basically that.
LORD PROSSER: On 4 you have really been reading it.
MR MAYER: What I am concerned with at the moment is I know that my learned senior will want to develop these other approaches.
LORD PROSSER: Questions of necessity or similar defences which might justify defences or the like, you are not tied to having to open things yourself. If you have adopted what has been said on these matters your senior can proceed on the basis of what you have adopted as well as on the basis of what you have said.
MR MAYER: Well, I am obliged my Lord. I think the best course is to do just that.
LORD PROSSER: And anyway I think in a case such as this one is not too nice about the right of people in second speech to move to what may become live issues and so on.
MR MAYER: Well, I am obliged my Lord. I have had the opportunity of discussing the matter with my learned friends for the Crown who don’t seem to be troubled if I skip over the South African tests. Question 4….
LORD PROSSER: That’s what we have just been discussing, it’s in question 4 that these matters arise isn’t it?
MR MAYER: I have got it under 3.
LORD PROSSER: It seemed to be they were perhaps aspects of…. Anyway, was there something you wanted to say.
MR MAYER: Question 4 my Lords in my submission should be answered in the affirmative, the question presumes that an act committed to prevent a greater crime which would itself otherwise be a crime remains a crime, even when the act is done on good grounds and I say that the fallacy of that is that an act done intending to prevent crime means that the original act has no founding mens rea, there can’t be a crime.
LORD PROSSER: I think this is a point that has been touched on, whether this means the offence, or what would otherwise be an offence, that’s just a language point, I am very conscious of that difference.
MR MAYER: In my submission that’s all it is, it is a language point and very little else. I will say….
LORD PROSSER: Well don’t feel forced.
MR MAYER: So with that my Lords, unless I can assist the Court with any particular matter, those would be my submissions.
LORD PROSSER: No, thank you very much.
Adjourned until tomorrow morning.
Court of Session Scotland
Transcript of Proceedings in Lord Advocate’s Reference
(No. 1 of 2000) Part 2
Tuesday, 14 November 2000
22 Rutland Square, Edinburgh EH1 2BB
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