WEDNESDAY, 11th OCTOBER, 2000
LORD PROSSER: Miss Zelter, before I ask you to continue there are just a couple of things I think it would be easier to raise at this stage. You gave us what we called a big bundle and a small bundle and we’ve got them and what relationship is there. It appears that the smaller one is as it were passages which are highlighted which you may specifically want to refer us to whereas the larger bundle, what is that?
MISS ZELTER: I found it easier the way the Crown have got their references to have it separated out and the smaller bundle is the one I prepared.
LORD PROSSER: It would cover most of the passages that you have been referring to and one will find the full documents.
MISS ZELTER: Yes my Lord.
LORD PROSSER: I have the index of references and that is extra.
MISS ZELTER: I think there was a missing reference 82 but there is a copy of reference 82 and the Crown copies are from print and that edition is slightly different on the page numbers.
LORD PROSSER: They are exactly the same but the page numbers are slightly different. I just wanted to check that when you came to questions of Government policy you obviously have before you the points implicated in deployment and in particular in deployment of Trident specifically but you also referred to certain expressions or things said by Government from which one may infer or perhaps hear both submissions and policy and it seemed to me, it may not matter whether these were referred to before the Sheriff or not, but it did seem to me that, without having checked that the material was before the Sheriff. Plainly the letter that you received in September of this year was not before the Sheriff.
MISS ZELTER: I have the full list that I had before the Greenock Court. I do have a full list of all the references that I put before the Greenock Court.
LORD PROSSER: The other material was the letter that you got the other day which plainly was not, but you also referred to the submissions made at the time of the Iraqi conflict by both the Foreign Secretary and the Defence Secretary. These were before the Sheriff.
MISS ZELTER: Yes.
LORD PROSSER: If you return to your submissions.
Miss Zelter resumed her submission at Page 22 War Crimes – Paragraph 4(52).
War Crimes 4(52)
Any individual who ordered the use of the United Kingdom’s nuclear weapons which are currently deployed on Trident submarines would have committed a war crime as determined by the International Criminal Court Statute. This Statute sets forth offences under which individuals would be prosecuted once that court is in operation. Its substantive provisions were explicitly negotiated on the basis that they would reflect the present state of law binding on all States. While the Statute is not yet in effect, as the required number of States (60) has not yet ratified the instrument (the UK are preparing to ratify it in this new Parliamentary session), the Statute nonetheless stands as a consensus-based statement of presently binding law defining war crimes. 50 4(53)
Article 8 (2) (b) parts (iv) and (v) of the International Criminal Court Statute state, “War crimes means … serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts; … (iv) Intentional launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated, (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives”. 51 4(54)
Article 25 of the Rome Statute contemplates criminal responsibility not only in the case of those who personally commit offences, but also in the case of those who order them. [Ref.4. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 25(3.b)]. Article 28 has far reaching provisions on the responsibility of commanders and other superiors who may be liable in some situations for not giving appropriate orders. 52 4(55)
In relation to this responsibility it is important to note that the British government have always refused to answer our question of how the crew of Trident can take personal responsibility for their actions when their targets are coded and they do not know where their nuclear warheads will explode? The Law of Armed Conflict states, “Military personnel are required to obey lawful commands. There is no defence of ’superior orders’. If a soldier carries out an illegal order, both he and the person giving that order are responsible.” The Nuremberg principle is binding. If Trident crews do not know what the targets of their weapons are, how can they know if they are legal targets or not? Trident crews fire blind. This is a criminal procedure. 53 4(56)
The 100 kiloton warheads on Trident are each eight times more powerful than the bomb used against Hiroshima. The Hiroshima bomb had killed approximately 140 to 150 thousand people, including thousands of innocent children, by the end of 1945, and devastated an entire city, destroying 18 major hospitals, 14 high-schools, colleges, and a university, many historic and deeply revered Shinto shrines, 13 Christian churches, 4 major factories – a whole city. 54 Moreover, when I was in Hiroshima this March I met survivors of that bomb who told me of the continuing suffering and took me to the Museum. One of the books I was given there states, “The damage caused by the A-bomb failed to heal normally with the passage of time. Over the years and decades, the horrors of radiation grew more conspicuous. Research into radiation effects, strictly suppressed during the occupation (by the US) proceeded rapidly when Japan was once again independent. This research gradually brought radiation aftereffects and the plight of the survivors into the open”. 55 That destruction in Hiroshima was ruled a war crime in the Shimoda Case. 56 At pages 234-242 it says that the “act of dropping such a cruel bomb is contrary to the fundamental principles of the laws of war that unnecessary pain not be given”.
Interjection by the Court at the end of Page 24 Paragraph 4(56).
LORD PROSSER: Did that turn on it’s nuclear nature with radiation or simply on the question of immediate destruction. I think the original call was for the bombing of Tokyo.
MISS ZELTER: This turns on the radiation and the effect it bears over time and over generations even when the war is over. To come back on that point I’m not conceding that the bombing of Tokyo was not also a war crime.
LORD PROSSER: It was just to clarify that particular point.
At this stage Miss Zelter continued her written statement.
According to the ICJ, at para.105 2D, which was adopted unanimously, a threat or use of nuclear weapons must “be compatible with the requirements of the international law applicable in armed conflict”. It was confirmed, at para.78, that “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets … States do not have unlimited freedom of choice of means in the weapons they use”.
The threat to target civilians with nuclear weapons, whether as an unprovoked attack or as a reprisal, is therefore unlawful. In the oral statement that the United Kingdom gave to the ICJ on November 15, 1995, Sir Nicholas Lyell admitted that “…. even a military target must not be attacked if to do so would cause collateral civilian casualties or damage to civilian property which is excessive in relation to the concrete and direct military advantage anticipated from the attack”. 57 4(59)
However, as the ICJ points out, at para.35, “By its very nature … nuclear weapons as they exist today, release(s) not only immense quantities of heat and energy, but also powerful and prolonged radiation … These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystems of the planet”. This general statement about nuclear weapons is equally true when applied to British nuclear weapons in particular.
Faslane in Scotland is the primary base used by the United Kingdom’s four nuclear-armed Trident submarines. There is at least one Trident submarine on 24-hour patrol at all times. Each Trident submarine has 48 warheads of 100 to 120 kilotons each. A 100-kiloton warhead is too powerful to distinguish between civilian and military targets and its long lasting effects cannot be contained within space or time and therefore violates international law.
“Today the scale of Britain’s nuclear capability and the way it is deployed suggest that it remains oriented principally against Russia. An attack using the warheads on one submarine against likely targets in the Moscow area would result in over 3 million deaths” and “there would also be massive nuclear fallout over urban areas. Thousands of people would die over a 4 to 12 week period from this fallout”. 58 4(62)
Other potential targets are Russian Northern Fleet submarine bases. In the United Kingdom there are towns and villages close to every key submarine facility as is the case with Faslane, which is near the civilian population in Glasgow. There are also civilian populations close to Russian bases near Murmansk. Trident warheads exploding above these bases would cause devastation over a wide area and in each case would result in thousands of civilian casualties in urban areas. The areas affected would also be dangerous to rescue and medical staff and civilians who would want to use the area in future.
When I asked Professor Paul Rogers to use the actual specifications of the UK Trident Force along with UK targeting policies and to model this against Britain itself in order to more easily understand the effects of the Trident system, he produced a paper stating, on page 2, that “The main targets would be the Trident base at Faslane and the nuclear armaments site at Coulport, both close to Glasgow. Supporting facilities at bases including Rosyth (near Edinburgh) and Devonport (near Plymouth) would also be attacked” as would Fairford, Fylingdales, Aldermaston, and civil airports with long runways at “Heathrow, Stanstead, Gatwick, Birmingham, Manchester, Glasgow, Prestwick, and Edinburgh”. “Major military command centres would include Northwood … High Wycombe … Dunfermline .. Defence Intelligence Staff in Central London” … energy resources “such as Grangemouth, Teeside, Stanlow/Ellesmere Port” etc etc. He concludes that many of the targets are necessarily close to population centres and that the casualty figures would be measured in “many millions”. 59
Interjection by the Court at Page 25 at the end of Paragraph 4(63).
LORD PROSSER: These quotations are from where, they are not from a written paper?
MISS ZELTER: This is from a written paper.
LORD PROSSER: Did he speak to it?
MISS ZELTER: No, he didn’t speak to this at Greenock. This is something I asked him to do specifically for this case.
LORD PROSSER: He produced a paper but it was produced ad hoc.
MISS ZELTER: He gave evidence at Greenock which covered this but ideally I wanted this particular paper. The reference is No.77.
LORD PROSSER: In the smaller bundle.
MISS ZELTER: Now, we have highlighted this with the barracks in the centre of the red circle which is the military target and the effect of one Trident warhead which is actually 1,100 metres above the target, which is where I think most of the Trident submarines had been used, and you will notice within the 98% killed area there are schools and trees, a church and a university, you know Edinburgh better than me, and you can see how the innocent civilians and direct people and places would actually be affected by the use of just one Trident warhead directed accurately against one military target.
LORD PROSSER: The yellow circle is what?
MISS ZELTER: Are the effects of the heat from the exposure, the red is the blast damage. These are immediate deaths and do not take account of the radiation effects over a much larger area.
At this point Miss Zelter resumed reading from the last sentence of Page 25 Paragraph 4(64).
I have also included in the bundle of references a map of Edinburgh with one of its many military targets in the centre. This has been overlaid with the damage which would be caused if one of Trident’s warheads was exploded at 1,100 kt above the target. 60 It makes grim reading and brings home to us all how integrated the military have become in many cities and towns around the UK.
The upshot of it all is that any Trident sized nuclear warhead, even if targeted accurately, at any of these ’military objectives’ would cause millions of civilian deaths. I am sure that we would all agree that such use of such nuclear weapons against Britain would be a war crime even if our leaders were invading another State and that State thought they were fighting for their very existence, in self-defence. And if such use would be a war crime if done against Britain then to be consistent it would also be a war crime if perpetrated against any other country in the world. Preparations for War Crimes 4(66)
The preparation for war crimes is itself a war crime, as made most explicit in the International Criminal Court Statute Article 25 (3). “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: …(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”. 61 4(67)
This is a culmination of various precedents such as the last paragraph of Article 6 of the Charter of the International Military Tribunal at Nuremberg on “instigators and accomplices participating in the formulation … of a common plan or conspiracy”. 62 4(68)
The Prime Minister and other officers of the state are engaged in the planning and preparation for use of nuclear weapons, in that they are actively deploying nuclear weapons, of such a size that they could never be used lawfully. These are activities that incur individual criminal responsibility in international law. Any use of current British nuclear weapons would be manifestly unlawful and thus policy makers, state employees, researchers and technicians are engaged in the planning and preparation of gross violations of humanitarian law, itself a crime under international law. Nuclear Policy 4(69)
Just as the use of British nuclear weapons would be illegal and criminal so is the threat to use them, which is what Trident deployment and the British Government’s reliance on nuclear deterrence is all about. And this is not just a belief of mine but a fact. If we look at the statement given to the International Court of Justice by Japanese lawyers in 1995 it states, at page 25, ’The world’s citizens are in actuality being threatened at this very moment’. They explained, ’Since Hiroshima and Nagasaki the nuclear powers have always hinted at the possibility that they might use nuclear weapons and have continued saying that it is legal. Nobody on earth can live their lives while putting their trust in this ’humanity’ of the nuclear powers. This is because resigning oneself to a condition of servility , in which one’s very existence as a human being is controlled by the intentions of a handful of nuclear-armed states, goes against the nature of human being, and jeopardises our supreme and inalienable right to life, which is universally affirmed in the Universal Declaration of Human Rights and the International Covenant on Human Rights. This state of nuclear servitude also jeopardises our enjoyment of other human rights and basic freedoms, and therefore means that ’human dignity’ is violated.” 63 4(70)
In para.48 of the Advisory Opinion, the ICJ argues that a credible deterrent is a threat. …
Interjection by the Court at the end of the first sentence of Page 26 Paragraph 4(70).
LORD KIRKWOOD: Is the ICJ “argues that a credible deterrent is a threat”, is that simply quoting the argument put forward by some States?
MISS ZELTER: I’ll come on to that.
LORD KIRKWOOD: I have it here.
MISS ZELTER: If I can read what it says.
LORD PROSSER: Perhaps it is the ICJ’s narrative and sentence “In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible”. It may be that is still narrating that the States put forward rather than the view of the Court itself.
MISS ZELTER: Yes, it is.
LORD PROSSER: It says “necessitates that the intention to use nuclear weapons be credible”, and it brings in that as its criteria so it is credibility it is talking about but not genuineness.
MISS ZELTER: Yes, he is putting it within that framework.
LORD KIRKWOOD: Whether that was just the view expressed by the Court.
MISS ZELTER: If we narrate the argument… At this stage Miss Zelter continued her written statement on the second sentence of Page 26 Paragraph No. 4(70).
…I quote, “Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence … necessitates that the intention to use nuclear weapons be credible. Whether this is a ’threat’ contrary to Article 2, paragraph 4, [of the UN Charter] depends upon whether the particular use of force … would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it would be unlawful under the law of the Charter.”
Even US Judge Schwebel, in his section on State Practice on page 1, explains that states have threatened to use their nuclear weapons “by the hard facts and inexorable implications of the possession and deployment of nuclear weapons; by a posture of readiness to launch nuclear weapons 365 days a year, 24 hours of every day; by the military plans, strategic and tactical, developed and sometimes publicly revealed by them; and, in a very few international crises, by threatening the use of nuclear weapons. In the very doctrine and practice of deterrence, the threat of the possible use of nuclear weapons inheres”. And on page 3 he re-iterates the point, “If a threat of possible use did not inhere in deterrence, deterrence would not deter”. 64 4(72)
U.K. government policy is that Britain has a “credible nuclear deterrent”. This means far more than possession. A credible deterrent requires that the other side is convinced that the weapons would be used. So to have a credible deterrent means that preparations have been made to use the weapons and there is an intention to use them in some circumstances. One strand of strategic thinking is that there can be “existential deterrence”. This approach says that the possession of nuclear arms is in itself sufficient to constitute a deterrent. Existential deterrence is not currently practised by any of the main nuclear weapons states.
The former Permanent Under Secretary at the MoD, Michael Quinlan, has dismissed this approach. He said of existential deterrence, “We cannot however infer from this that our own armoury will be durably effective in contributing to deterrence, especially in times of pressure when it is most needed, if there are no realistic concepts for its use or if we have a settled resolve never to use it. … Deterrence and use in logic can be distinguished, but not wholly disconnected. We cannot say that nuclear weapons are for deterrence and never for use, however remote we judge the latter possibility to be. Weapons deter by the possibility of their use, and by no other route; the distinction sometimes attempted between deterrent capabilities and war-fighting capabilities has in a strict sense no meaningful basis … The concept of deterrence accordingly cannot exist solely in the present – it inevitably contains a reference forward to future action, however contingent. The reference need not entail automaticity, or even a firm intention linked to defined hypotheses; it need entail no more than a refusal to rule out all possibility of use; but it cannot entail less”. 65
Interjection by the Court at Page 27 at the end of Paragraph 4(73).
LORD PROSSER: That was written by him as an official and he was so at the time.
MISS ZELTER: It was published in 1997, the Whitehall paper.
LORD PROSSER: It was written by him in his official capacity?
MISS ZELTER: We can check and come back on that.
LORD PROSSER: The paper says it is “RUSI”.
MISS ZELTER: I don’t know but again I’ll come back on it.
LORD PROSSER: It is the Royal United Services Institute Whitehall Paper series.
At this stage Miss Zelter continued her written statement.
In fact the UK goes much further than this. According to one of the more detailed assessments of the range of options for sub-strategic Trident warheads, David Miller, for the International Defence Review in 1994, outlined 4 different uses, in the third one of which he says, “they could be used in a demonstrative role: i.e. aimed at a non-critical uninhabited area, with the message that if the country concerned continued on its present course of action, nuclear weapons would be aimed at a high-priority target.” 66 This is backed up by a recent letter of 28/9/2000 received from the Ministry of Defence which talks of sending a “signal” and which also leaves open the possibility of firing “all the nuclear weapons at its disposal” . 67 However, even a limited warning shot would not be lawful because its ’purpose’ would be to warn that much worse will come and that worse would be a high-yield bomb that would be indisputably illegal and therefore the warning shot itself would be an illegal threat. I come back once more to the simple underlying purpose of the British nuclear deterrent – to threaten awful destruction. It is that awful destruction, that crime, that we three women were trying to prevent by our action.
Interjection by the Court at Page 28 the end of Paragraph 4(74).
LORD PROSSER: The warning shot, would this be a particularly specific form of threat?
MISS ZELTER: Yes, it doesn’t need to say if it is a threat.
LORD PROSSER: It is just getting more specific.
MISS ZELTER: It is in itself an illegal threat.
At this stage Miss Zelter continued her written statement.
Para.47 of the Advisory Opinion makes it clear that it is illegal to threaten to do an act if the act itself is illegal, “If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4” of the UN Charter. The United Kingdom possesses nuclear weapons, of a size that cannot be used discriminately, which are constantly deployed on submarines, ready to be used, and has made statements of conditional willingness to use them in British policy documents. This “stated readiness to use” its nuclear weapons is exactly the kind of threat that is prohibited under Article 2(4) of the UN Charter.
British nuclear warheads of 100 kilotons could never be used in conformity with the principles of necessity and proportionality and the requirements of international law. Therefore continuous active deployment combined with a stated readiness to use them constitutes an illegal threat to use nuclear weapons and as such is illegal. Refusal to Negotiate under Article VI of the NPT 4(77)
At para.99 of the Advisory Opinion, the ICJ appreciated “the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament”. It ruled unanimously, at para.105(2F), “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”. At para.99 it stated, “The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result nuclear disarmament in all its aspects by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.” 4(78)
The United Kingdom has made clear it has no immediate intention of eliminating its Trident system. The Strategic Defence Review specifies plans for upgrading Trident in the medium term and keeping options open for a replacement in the long term. Recent press revelations and a report by Alan Simpson MP present evidence of the new refurbishment programme at the Atomic Weapons Establishment at Aldermaston costing one hundred and fifty million pounds sterling and of a linkage with the US “son of Trident” programme to upgrade nuclear warheads. There is also proof of increased scientific collaboration between the United Kingdom, France and the US. Simpson’s report concludes, “there is strong evidence that Britain is currently involved in the development of prototype designs to replace the current Trident nuclear warhead”. 68 4(79)
Nor has the United Kingdom been working in good faith within the UN for nuclear disarmament resolutions. For instance, in 1998 the United Kingdom voted against the resolution, “Towards a Nuclear Weapon-Free World: The Need for a New Agenda”. Ian Soutar, the British ambassador to the UN, said that the resolution contained measures that were “inconsistent with the maintenance of a credible minimum deterrent”. 69 The United Kingdom also voted, for the third consecutive year, against the 1999 UN Resolution on “Follow-up to the ICJ Advisory opinion”. 70 4(80)
The United Kingdom’s refusal to stop deploying Trident and to start its practical disarmament of Trident flouts Article VI of the NPT as interpreted by the ICJ in paras.99 and 105(2F) of the Advisory Opinion. The continuing development of new nuclear weapons is also a breach of Article VI and constitutes a violation of international law. At the recent Review Conference of the NPT in New York in May this year, although the United Kingdom joined in the consensus “unequivocal undertaking by the nuclear weapon states to accomplish the total elimination of their nuclear arsenals”, 71 nevertheless they have not done anything practical to put this into effect. The original NPT promises by the nuclear weapons states were not fulfilled. We must look at the facts on the ground. The United Kingdom continues to fund research into new nuclear weapon systems, continues to deploy armed nuclear missiles and continues to state that it relies upon nuclear deterrence. In this context it is not surprising that ordinary citizens have felt the necessity to try to begin the disarmament themselves. Conclusion 4(81)
The Government has frequently been asked but has never explained to the ICJ or to the British public how it could possibly use its nuclear weapons legally. It has not even been able to outline one hypothetical example. The government has, in fact, been very careful to say that it could never foresee the precise circumstances and could therefore not determine the legality until the time came to use them. It is hard to see how, with no criteria apparently available to use as guidance, any responsible Commander could make a decision to unleash Trident missiles within the probable fifteen minutes time frame that would be available in a particular instance. It is clear that the British Government has to date been unable and unwilling to open itself to independent legal scrutiny.
The form of words the government usually uses is: “the legality or otherwise of any specific use of any nuclear weapons … can only be determined in the light of all the circumstances applying at the time such use is being considered. It is impossible to anticipate in advance with any confidence the exact circumstances which might arise, and to speculate on particular hypothetical cases would serve no purpose”. 72 4(83)
It is absurd to think that, if no such legal scrutiny and exercises had taken place before, any thorough legal scrutiny of an actual use of nuclear weapons could take place in the heat of a war of self-defence in which the very survival of the United Kingdom might be at stake. According to the ICJ this is the only possible circumstance in which the use of nuclear weapons might conceivably be used. The fact that the British Government cannot identify a single hypothetical case that could be presented into the public domain for independent legal scrutiny suggests there are none.
Interjection by the Court at Page 30 at the end of Paragraph 4(83).
LORD PROSSER: That is the end of a major chapter really.
MISS ZELTER: I would finally like just to add a little bit to that which belongs to this point. With the permission of the Court I would like to make some extra points on the basis that I am seeking to counter the impression sought to be conveyed by the Crown to the effect that nothing can be illegal as long as it assists the UK.
LORD PROSSER: Could you just slow down please.
MISS ZELTER: I would seek to counter the impression sought to be conveyed by the Crown to the effect that nothing can be illegal as long as it assists the UK in the situation it defines as one of extreme necessity. I am referring to Reference 87 “In the Hostages Case the Tribunal clearly stated that the ’rules of International Law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation”. And “This passage was prominently cited by the Commission in the concluding Digest of Law and Cases” and then the reference in 88 “as well as being followed in the German High Command trial where the Tribunal explicitly repudiated as ’a denial of all laws’ the theory that ’the laws of war lose their binding force in case of extreme necessity, which was said to arise when the violation of the laws of war offers other means of escape from extreme danger, or the realisation of the purpose of war – namely the overpowering of the enemy”.
Finally, with the permission of the Court, I would like to share some extra information from the classic corpus of post WW2 war crimes trials, which directly counter the impression sought to be conveyed by Counsel to the Crown to the effect that nothing can be illegal so long as it assists the UK in a situation it defines as one of extreme necessity.
In the Hostages Case the Tribunal clearly stated that “the rules of International Law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation.” 73 This passage was prominently cited by the Commission in the concluding Digest of Law and Cases 74 as well as being followed in the German High Command Trial where the Tribunal explicitly repudiated as “a denial of all laws” the theory that “the laws of war lose their binding force in case of extreme necessity, which was said to arise when the violation of the laws of war offers other means of escape from extreme danger, or the realization of the purpose of war – namely, the overpowering of the enemy.” 75
LORD PROSSER: It is quite important, the reference to the German High Command trial, is that to Nuremberg itself?
MISS ZELTER: Yes, I think it is all that particular trial. I think that particular edition does refer to that.
LORD PROSSER: If it had been at Nuremberg as well as the original, the big one.
MISS ZELTER: At this stage Miss Zelter continued her written statement “In the same case the Tribunal placed use of poisoned arms”, and I don’t want to get into a discussion of whether nuclear weapons are poisoned or not, but the essence of it is the same anyway, but nonetheless “in a category of conventional and customary rules that ’do not lose their binding force even if the breach would effect an escape from extreme danger or the realisation of the purpose of law”. “And it also went on to quote the key sentence in the Judgment of the Tribunal in the Krupp Trial from which I would like to quote a full paragraph (full paragraph quoted)”.
In the same case the Tribunal placed use of poisoned arms in a category of conventional and customary rules that “do not lose their binding force even if the breach would effect an escape from extreme danger or the realization of the purpose of law.” 76 And it also went on (at page 127) to quote the key sentence in the Judgement of the Tribunal in the Krupp Trial from which I would like to quote a full paragraph: ” However, quite apart from this consideration, the contention that the rules and customs of warfare can be violated if either party is hard-pressed in any way must be rejected on other grounds. War is by definition a risky and hazardous business. That is one of the reasons that the outcome of war, once started, is unforeseeable and that, therefore, war is a basically unrational means of ’settling’ conflicts – why right-thinking people all over the world repudiate and abhor aggressive war. It is an essence of war that one or the other side must lose and the experienced generals and statesmen knew this when they drafted the rules and customs of land warfare. In short these rules and customs of warfare are designed specifically for all phases of war. They comprise the law for such an emergency. To claim that they can be wantonly – and at the sole discretion of any one belligerent – disregarded when he considers his own situation to be critical, means nothing more or less that to abrogate the laws and customs of war entirely.’” 77
This concludes my argument on the illegality of Trident.
LORD PROSSER: You have appended these references, are these additional ones?
MISS ZELTER: Yes.
LORD PROSSER: They are not in the other bundle.
MISS ZELTER: If you would like them just to set the context of what I consider to be the illegality of the situation.
LORD PROSSER: Before we leave that chapter can I just see if you can clarify Article 6 of the comment on the proliferation treaty which seems to be hopeful that the nuclear powers will disarm individually, and your concern is the perhaps intention that they should all do it together because they won’t do it separately and that seems to be the context and therefore the need for negotiation apparently over some period of time. So that at least, that sentence doesn’t appear to be putting forward the proposition that these nuclear states are already under an obligation to disarm unilaterally.
MISS ZELTER: The whole point of the non-proliferation treaty when it was set up was based on two assumptions, one was that the nuclear weapons states would disarm, and the other one that the non-nuclear states would not get nuclear weapons and that they made a promise that for the next 25 years they did not arm so that was the universal point and that was an obligation of the Act.
LORD PROSSER: Not just the Act, but it is to negotiate in good faith, it is the negotiation in good faith which seems to be the most important point, to all at once commit to getting rid of it.
MISS ZELTER: I would submit it doesn’t rule out doing it unilaterally, it is trying to put pressure on all the nuclear states.
LORD PROSSER: Running through it like that it seems to be implicit in that that they are just, they are committing themselves to negotiation which will succeed sooner or later, and once it has succeeded presumably if nobody has nuclear weapons even a country whose survival is at stake may just have to submit to being overwhelmed, or at least tolerate being overwhelmed.
MISS ZELTER: Yes, in a case where the negotiations have or haven’t succeeded.
LORD PROSSER: The point I wanted to clarify was and this is a point you might rely on, there seems to be an acceptance by even the nuclear states of what you can call survival self-defence which doesn’t justify everything, never mind in the meantime, it doesn’t justify this in the end, and then if the disarmed countries have to tolerate being overwhelmed presumably the international community might intervene in the same way to restore things or they might lose their state-hood. That is the point I wanted to raise before.
At this stage Miss Zelter continued her written statement at Page 31.
LORD PROSSER: This as it were is Chapter 5.
MISS ZELTER: Yes.
The implication of all this is that British Government officials involved in the Trident programme, from the Prime Minister down, including all members of the Executive and the Lord Advocate, and the military personnel involved, are all international criminals subject to trial before an international panel similar to the Nuremberg or Tokyo Tribunal or the current Tribunals dealing with the atrocities in Rwanda and the Former Yugoslavia.
So far no court of law or Tribunal has upheld my view (which is shared by millions of other people around the world) because no court has been allowed to look directly and thus to rule on this particular issue of the legal status of the UK’s Trident system. This is not for want of trying.
In fact, many citizens, over the last 20 years, have put motions and petitions before the Lord Advocate and Attorney General asking that the UK nuclear forces be ruled unlawful under the Geneva Conventions Act or that the issues at least be examined impartially in a public inquiry. Many citizens have asked for legal permission at numerous magistrates courts around England and Wales to institute private prosecutions against Ministers and Military Leaders, indicting them for conspiracy and incitement to violate the most fundamental principles of International and United Kingdom Law – but to no avail – so far. 78 5(4)
These attempts still continue. In answer to a written question put by Tony Benn M.P. in December last year, the Solicitor General admitted that, “A request for a private prosecution under the Geneva Conventions Act 1957 was received last year. However, the Law Officers take the view that the application of the Government’s nuclear deterrence policy does not involve an infringement of either domestic or international law, and accordingly permission was not given.” 79 Many citizens have also approached the police authorities to ask them to investigate the crime and take legal proceedings in the public interest. But all to no effect. The rule of law is still being thwarted.
I gave evidence from the witness box as to these attempts, some of which I had personally been involved in. The Sheriff reported the evidence I gave to this effect at page 23. 80 I said then and I say again that this is a serious failure and indictment of the Judicial System in both Scotland and England.
In view of the general failure of the Executive to allow remedies to be taken by ordinary citizens against crimes being committed by the State, it is not surprising that ordinary people, like us three women, have felt the absolute necessity to try to work with others to prevent this crime ourselves.
Interjection by the Court at Page 31 Paragraph 5(6) “In view of the general failure of the Executive to allow remedies to be taken by ordinary citizens against crimes being committed by the State, it is not surprising that ordinary people …”
LORD PROSSER: Surprising not by the judicial system but by the Prosecution system.
MISS ZELTER: Yes.
At this stage Miss Zelter continued her written statement from Page 31 Paragraph 5(6).
I hope that this Court will now help to remedy this situation which is one of the utmost seriousness, involving as it does the right of ordinary people to protect themselves and others and their planet from utter destruction. I hope also that this Court, although it has not allowed the addition of another question to look at the legality of Trident specifically, will nevertheless see the wisdom of at least recommending, in the final ruling, that there be an immediate independent judicial enquiry into the legal status of Trident. It is just not good enough for the Crown to lamely repeat the official government line that Trident is lawful. At Greenock we brought evidence to show that Trident is not only unlawful but also criminal. This decision should not be undermined in any way unless and until a full, independent, publicly accountable inquiry into Trident and present British policy is set up with opportunities for all concerned citizens to present full evidence backed up by testimony from expert witnesses.
Interjection by the Court at Page 32 the end of Paragraph 5(7).
LORD PROSSER: If I can interrupt a bit more, in Paragraphs 5(3) and 5(4) you refer to rulings under the Geneva Conventions Act, seeking prosecution under the Geneva Conventions Act and in fact the attempts have gone wider than that. It is not always under that. It could be ruled on as a matter of International Law.
MISS ZELTER: Yes, there were attempts to do that.
LORD PROSSER: It just seemed a bit narrower than the actual history of events has been.
MISS ZELTER: Now, to proceed. At this stage Miss Zelter continued her written statement at Page 33.
The next part of the Petition at 1(c) is also factually inaccurate in that it says that Professors Boyle and Rogers and also Rebecca Johnson were all “held out as
experts on aspects of the development and current content of international law”. 81
In fact Professor Boyle was the only one of the five expert witnesses who was held out as an expert on the content of international law. He spoke to its application to nuclear weapons in general and Trident in particular and provided an objective framework for our international law enforcement defence and our necessity defence as well as providing the reasoning and understanding as to why there was no malice in our actions. He also gave evidence on the criminality of nuclear deterrence policy and the criminality of deployment of British Trident submarines. 82 6(3)
He not only referred to the Advisory Opinion of the ICJ but also directly to the contents of international humanitarian law itself especially the Nuremberg Charter, Judgement and Principles that he referred to, for short, as Nuremberg. 83 It is also important to point out that despite the Sheriff’s ruling on the relevance and competence of Professor Boyle, despite the prior advance notice of all of our expert witnesses including the lodging of documents, the Procurator Fiscal did not lead an expert international law witness to counter the evidence of Professor Boyle’s opinion that the threat or use of Trident would contravene international law, that British nuclear deterrence policy was criminal, that the deployment of British Trident submarines was criminal and that individuals have a right to try to stop war crimes. 84 6(4)
Rebecca Johnson’s evidence was also never countered. She was held out as an expert in international security and the relations between the nuclear powers and the non-nuclear powers. She spoke to the nature of the objective facts on the 8th June, a time when the UK was engaged in bombing Yugoslavia. 85
Interjection by the Court at Page 33 Paragraph 6(4) after the sentence “She spoke to the nature of the objective facts on 8th June, a time when the UK was engaged in bombing Yugoslavia”. I wonder whether at this point I could ask you to have a look at the Judicial Notes in a Times article and this was where there was a view taken of the Kosovo Crisis.
LORD PROSSER: This just confirms how serious it was.
MISS ZELTER: It was a crisis situation and it was from the Russian point of view.
LORD PROSSER: Specifically at the Kosovo stage, not the earlier conflict.
MISS ZELTER: Yes.
At this stage Miss Zelter continued her written statement.
…She also spoke to the perception by foreign governments that they felt threatened by the UK Trident system 86 and to Trident being “an ever present danger” 87 She was never held out as an expert in international law although she was held to be an expert on the implementation of the Non-Proliferation Treaty which she testified as having been breached by the UK 88 6(5)
Professor Rogers evidence was not countered either. He was called as an expert on the specifications and contents of the present British nuclear arsenal, 89 contents of current British Defence Policy 90 the likely and foreseeable consequences of use of the 100 kt Trident nuclear warheads, that are roughly 8 times more powerful than the Hiroshima bomb that was found to be a criminal act under international law in the Shimoda Case, 91 and the ever-present danger of nuclear accident. 92 This testimony was essential to give an objective analysis of how dangerous and imminent the threat of nuclear war and accident actually is and to testify that the warheads deployed on Trident could never be capable of distinguishing between civilian and military targets. He was never held out as an expert on international law.
The following section of the Petition at 1(d) is also seriously misleading. It includes a much-abbreviated extract from the Sheriff’s ruling and states that she submitted that the pannels were trying to stop the UK from “continuing to implement its policies in relation to nuclear weapons”. 93 This statement’s use of the word “policies” gives a cloak of legitimacy to what the government is doing because most people unthinkingly assume that official policies are obviously lawful. This is part and parcel of the official mind-set that cannot see the UK nuclear forces as other than legitimate military national defence forces and sees our disarmament of ’Maytime’ as some kind of political campaign rather than what it actually was – the prevention of gross breaches of international humanitarian law – namely preparations for indiscriminate mass attack.
In fact the Sheriff never held at any time that we were merely trying to stop the UK from “implementing its policies”. She had listened carefully to our evidence and submissions and concluded that we acted without malice because we had good reason to believe that the use and threat of British Trident was illegal and given the enormity of the risks involved considered we had a right to try to stop that illegality. She also reported that we acted out of necessity and that whatever the state of the law we would still have felt justified in trying to protect ourselves and others. The Court has the full transcript of the Sheriff’s ruling and also a copy of her full Report and so will be able to make its own mind up. I will not quote it here because to be fair it needs to be considered in its entirety and I am confident that the judges will consider it in its entirety.
Interjection by the Court at Page 35 at the end of Paragraph 7(2).
LORD PROSSER: Before we leave that chapter it refers there to the Sheriff’s conclusion that you had good reason to believe that the use and threat of Trident was illegal and she went from that to saying that given the enormity of the risks we had a right to stop the illegality. So the fundamental argument was not only that you had good reason to believe the threat was illegal but that you were right as a matter of law that they are illegal and that is the foundation for the argument. Yes, just so that we have it separated out.
MISS ZELTER: Yes.
LORD PROSSER: The good reason point is on the rather more specific point of Scots law is there sufficient mens rea apart from the justification argument, whereas the other argument is the entitlement to intervene to prevent a crime and that’s how it is separated out.
At this stage Miss Zelter continued her written statement on Page 36.
To proceed to the last section of the first part of the Petition -1(e), it is important to point out that only the charges of malicious mischief have been mentioned. However, there was considerable discussion about the inconsistency of acquitting on the malicious mischief charges whilst convicting on the theft charges. One of the analogies used originally by Mr. McLaughlin at Greenock is very pertinent and bears repeating. He used an analogy of a local person finding a car in a remote area, with a bomb in it, which he knows is destined for a near-by town centre and which will cause damage and death. The person rips the tyres and then rolls it into a nearby loch, thus attempting to prevent the crime. He felt it was inconceivable that this act of crime prevention would be charged as theft. He felt the analogy was direct because the theft and the malicious mischief in the Greenock case arose out of the same set of facts. 94 8(2)
In fact the Sheriff agreed and held that we had acted without the criminal intent required for the constitution of any of the crimes charged in the indictment and directed the jury to acquit the three of us of all four charges including the alternate charge of stealing.
There was sufficient evidence – virtually unchallenged by the prosecution – to entitle the Sheriff to hold as she did. The genuineness and sincerity of our convictions about nuclear weapons were not challenged in the Greenock case and were accepted by the Sheriff.
There was no evidence put to show that our views were views which no reasonable persons could reasonably maintain. On the contrary, she made several statements to the effect that our reasonableness was never rebutted. 95
Answer 2 In the foregoing circumstances the questions of law should be answered as follows:
Question 1 asks “In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?”
My short answer is – Yes, if an issue of customary international law is properly raised.
An issue of customary international law was integral to our defence and having been properly presented in the case and appropriate evidence on it tendered to the Court the first question of law should not be answered in the negative.
It is not obvious why leading evidence on the content of customary international law should not be competent in Scottish criminal proceedings where an issue of international law arises. An expert international lawyer properly testifies to the content of international law but not to its application within domestic jurisdiction which is, of course, a matter for the court.
There is a word in the phrasing of this question that could be misleading in the context of the argument put forward at Greenock. The word is ’customary’. However, we relied on both customary and treaty law. Within the context of humanitarian law, customary international law is seldom separated from treaty law because the two sources overlap. Humanitarian law is partly codified in the Hague and Geneva Conventions – or treaties. Customary law is therefore not of a completely different kind. I would therefore prefer not to separate out the two sources in this particular question.
It is worth pointing out in this context that some customary international law was codified in an international convention and then was domesticated, so to speak, by an Act of Parliament. I refer of course to the Geneva Conventions Act of 1957 and the Geneva Conventions (Amendments) Act of 1995. These Acts were passed in the case of the 1957 Act ’to enable effect to be given to certain international conventions done at Geneva’ 96 and in the case of the 1995 Act ’to enable effect to be given to the Protocols additional to the Geneva Conventions of 1949 done at Geneva’ 97 They show the connection between customary international law, treaty and domestic law and how the principles of customary law bind them all together. They apply in Scotland.
Interjection by the Court at Page 37 at the end of Paragraph 9(7).
LORD PROSSER: The Crown position, and I have said this already, that the Court in finding out what International Law is look not just at treaties but look at textbooks and I’m not sure that I understand why one would take into account something a Professor wrote in a textbook but not take account of it when the evidence is given with regard to publication which is on the eve of the trial. As long as he has got it down then all will be well and it is noted what the Crown says. That’s really part of the idea of finding out what the International Law one is, we have to scout around a bit. It might be legitimate to have the chap along and give his testimony rather than to give…
MISS ZELTER: Yes, I do see that.
At this stage Miss Zelter continued her written statement on Page 38.
Customary international law is part of the common law of England and Scotland. Sir Hartley Shawcross, the UK prosecutor at Nuremberg, said, “In England and the United States our Courts have invariably acted on the view that the accepted customary rules of the Law of Nations are binding upon the subject and the citizen, and the position is essentially the same in most countries.” 98 9(9)
The Nuremberg Principles, which were adopted in 1950 state “the fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve that person who committed the act from responsibility under international law.” 99 9(10)
I also hold that war crimes and crimes against humanity are subject to universal jurisdiction under customary international law and may be prosecuted by any state. Dixon states, “Under International Law, there are certain crimes which are regarded as so destructive of the international order that any state may exercise jurisdiction in respect of them. This is a jurisdiction that exists irrespective of where the act constituting the crime takes place and the nationality of the person committing it”. He goes on to say, “it remains the case that … war crimes and crimes against humanity … are crimes susceptible to universal jurisdiction under customary international law and may be prosecuted by any state”. 100 9(11)
As I said, customary international law is part of the common law of England. Lord Lloyd of Berwick stated in the Pinochet case “As already mentioned, the common law incorporates the rules of customary international law. The matter is put thus in Oppenheim’s International Law [vol.1, 9th edition, 1992, ed. Sir Robert Jennings QC and Sir Arthur Watts QC], p. 57: ’The application of international law as part of the law of the land means that, subject to the overriding effect of statute law, rights and duties flowing from the rules of customary international law will be recognised and given effect by English courts without the need for any specific Act adopting those rules into English law.’” 101 9(12)
Lord Lloyd, in the same case, said, “the requirements of customary international law … are observed and enforced by our courts as part of the common law” and referred to “well-established principles of customary international law, which principles form part of the common law of England”. 102 9(13)
See also the opinion of Lord Millett in the Pinochet case where he says, “Customary international law is part of the common law” and of Lord Phillips where he refers to “the common law of England, of which international law forms part”. 103 9(14)
The same must be true in Scotland. Although Scotland has a distinct legal system, it is part of the UK. Since the UK is ’the State’ for the purposes of public international law, the domestic effect of international law should not differ according to which part of the UK is involved. Just as a treaty to which the UK is party is enforceable throughout the UK if it has been incorporated into domestic law by statute, so rules of customary international law have the same internal effect throughout the UK. This is acknowledged in Oppenheim’s “International Law” on p. 56, where it says, “As regards the United Kingdom all such rules of customary international law as are either universally recognised or have at any rate received the assent of this country are per se part of the law of the land.” 104 9(15)
The question then is: what is the relevant rule of customary international law? How is the court to ascertain it? Rosalyn Higgins QC, now the UK Judge on the ICJ has stated, “international law … is not a foreign, unknown law… All [the municipal court] has to do, with the assistance of counsel before it, is to examine the sources of international law on the topic to hand.” 105 9(16)
However, where the existence of a rule of customary international law is at issue before a national court, correctly determining its existence and content is critical. It would be foolish to proceed on the false notion that all members of the legal professions in Scotland, or elsewhere, have the knowledge and training to deal with international law when it arises in their courts. A visit to Argyll and Bute District Court would be a salutary lesson in the state of knowledge and respect for international law! The Procurator Fiscal, Mr. Donnelly, has continually claimed that “international law is not real law and does not apply in Scotland”. It is in the context of such an ignorant and biased view of international law that expert testimony is essential.
Interjection by the Court at Page 39 at the end of Paragraph 9(16).
LORD PROSSER: I don’t think one could perhaps criticise any particular court. There is absolutely nothing to stop either the Crown sending along a knowledgeable Advocate Depute to conduct proceedings in any court, or any accused to hire Counsel who do indeed know something about these matters. However it is an interesting paragraph.
At this stage Miss Zelter continued her written statement.
Even in more informed courts expert assistance is sometimes required. In Compania Naviera Vascongado v. S.S. Cristina at p.497, Lord Macmillan said: “it is a recognized prerequisite of the adoption in our municipal law of a doctrine of public international law that it shall have attained the position of general acceptance by civilized nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative text-books, practice and judicial decisions. It is manifestly of the highest importance that the courts of this country before they give the force of law within this realm to any doctrine of international law should be satisfied that it has the hallmarks of general assent and reciprocity.” 106 9(18)
The fact that customary international law is part of the law of the land and therefore, unlike foreign law, does not have to be proved as a fact should not mean that expert evidence cannot be admitted in order to establish the existence or content of particular rules.
Article 38 of the Statute of the International Court of Justice, is widely accepted as enumerating the main sources of international law as applied by the ICJ. After speaking of custom – “international custom, as evidence of a general practice accepted as law” – it refers to “the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” 107 Article 38(1)(d) is authority for judicial reference to publicists as a means of determining rules of international law.
In the Trendtex case, Lord Denning referred to the need for the courts to determine the rules of international law “seeking guidance from the decisions of the courts of other countries, from the jurists who have studied the problem, from treaties and conventions” (emphasis added). 108 9(21)
There are several domestic cases in which the opinions of international law text-book writers have been relied on. See, for example, the Piracy Jure Gentium case where the Judicial Committee of the Privy Council relied extensively on such opinions in order to determine whether actual robbery was an essential ingredient of the crime. At page 588 it states, “In considering such a question, the Board is permitted to consult and act upon a wider range of authority than that which it examines when the question for determination is one of municipal law only. The sources from which international law is derived include treaties between various States, State papers, municipal Acts of Parliament and the decisions of municipal Courts and last, but not least, opinions of juriconsults or text-book writers.” 109 The helping hand of testimony of ’juriconsults’ must be useful in at least some cases, of which our case at Greenock was a good example. It may, indeed, provide the best way to get the points before a busy trial judge. See also Radwan v. Radwan regarding the status of consular premises and where you will note that the Judge relied extensively on “the consensus of authors learned in international law, the approach of courts of law abroad.” 110 9(22)
Extensive reference to the writings of learned authors was also made in the Pinochet case. There was clearly no need for expert evidence as to the content of international law in that case since, as Lord Goff observed, three of the fourteen counsel who appeared for the appellants and their supporters were “distinguished Professors of International Law”. 111 9(23)
Hearing an expert give evidence in person is similar to relying on her writing, but is more objective and reliable since an expert witness has an overriding duty to the court, not unlike the duty owed by an advocate – overriding any obligation owed to the person from whom she has received instructions or by whom she is paid. As Professor Ian Brownlie QC has observed, it is “obvious that subjective factors enter into any assessment of juristic opinion, that individual writers reflect national or other prejudices and, further, that some publicists see themselves to be propagating new and better views rather than providing a passive appraisal of the law”. 112 9(24)
Taking evidence from an expert witness as to the content of customary international law should not be excluded given that “International law is a living and expanding code” – as Viscount Sankey stated in the Piracy Jure Gentium case. 113 (Lord Millett adopted this in the Pinochet case. 114 ) In short – text-books go out of date.
In the absence of any clear legal authority on the matter in Scotland (or elsewhere in the U.K. for that matter) and whatever the technical position, a court dealing with the possible application of customary international law plainly requires expert professional guidance upon it from qualified international lawyers. This is apparent from the confusion, doubt and ill-informed comments on international law that are being heard from both lawyers and magistrates in the lower District Courts, where most of the disarming citizens are appearing and attempting to have their international law arguments accepted. If customary international law forms an integral part of Scots Law, as I have argued it does, but most Scottish Courts are unfamiliar with it, the interests of justice demand that they should be able to call on experts to assist them with the content and interpretation of international law.
It is not uncommon in other jurisdictions to introduce such evidence. For instance, the American Law Institute’s highly authoritative Restatement of the Foreign Relations Law of the United States, states in Section 113(2) that “courts may in their discretion consider any relevant material or source, including expert testimony, in resolving questions of international law.” See also the discussion at pages 60-62 of the Restatement. On page 61, paragraph c for instance, it says, “Some judges have adopted the practice of receiving evidence, including expert testimony, on questions of international law. No rule precludes that practice and the courts tend to reject challenges to it based on the argument that international law must be treated like domestic laws for this purpose.” 115 9(27)
The Canadian courts, also, do not seem to have any problem with the introduction of evidence as to international law. See R.v. Bonadie, at page 31 where it states that “Two experts in the field of international law and consular immunity testified on this application. They held widely divergent views on vital issues”. 116 9(28)
In German and Austrian law of procedure, fundamental principles of “oral proceedings” and of “directness” are interpreted to mean that the parties are entitled to have their experts, including experts of the law, testify directly and orally to the Court. See Articles 128 and 411 of the German Code of Procedure and Articles 176 and 357 of the Austrian Code. For instance, Article 411(3) states “The court can order that the expert has to appear in the court hearing personally to explain his written opinion”. 117 These basic principles find their strongest expression in criminal cases. By way of example, the July 15, 1999 decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, discuses the Jordic case which was heard in the Oberlandesgericht in Dusseldorf, Germany, in 1997. (The Oberlandesgericht is the middle level appeal tribunal in Germany.) Jordic had been charged in Germany with war crimes carried out in Bosnia and Herzegovina. Extensive expert testimony was given pertaining to international humanitarian law, with a very similar subject matter, in fact, to that given by Professor Boyle in the Greenock case. To quote Note 155, “The conflict in Bosnia-Herzegovina was an international conflict for the purposes of Article 2 of the Fourth Geneva Convention …. The expert witness Fischer pointed out that, by using the term international humanitarian law applicable to this conflict, the United Nations Security Council has used the term usual in international terminology to refer to the law applicable to international armed conflicts” (my emphasis) 118
Interjection by the Court at Page 42 at the end of Paragraph 9(28).
LORD PROSSER: Again it may be a matter that is really more for lawyers but on the matter of the reference to Continental Law it is said that parties are entitled to have their experts and the expert procedures differ a great deal. I suspect they are talking about the use of experts in the Continental sense. That would be someone not engaged by each party but someone engaged by the Court, or a Court Order, made to the effect that that it might be a very different party or saying that the parties have a right to call, and that would be picked up by others.
MISS ZELTER: My argument is a different one.
At this stage Miss Zelter continued her written statement.
My argument is not that expert testimony on international law is always competent. There may be some crystal clear cases where there is no room for it. My argument is that there are some cases (like at Greenock) where such testimony is not only competent, but crucial to an understanding of the defence. The trial judge must have some discretion in the matter and his or her discretion should not be overturned without evidence of a very clear error.
In our case, the content of international law was pivotal to showing that an international crime was being committed by the possession and deployment of Trident – it was the very crime we were trying to prevent. There could not have been a fair trial without the examination of international law as it applied to the UK. It was crucial to an understanding of the defence. Because such law is complex and the courts are relatively unfamiliar with it they sometimes need experts to help them.
I also think it is important to acknowledge the Sheriff’s own reasoning for allowing our expert witness, Professor Boyle, to lead evidence on the content of customary international law as it applies to the UK. She says at page 59 of her Report, “it was clear that … the defence was not simply going to be based on reasonable belief plucked out of the air, or simple necessity”. She also said that she “was not entirely sure how much she could rely on Mr. Mayer and Mr. McLaughlin to address me on the international law should this really be at issue.” At page 60, she goes on to say that “in principle I could not see why an expert in international law could not address me especially if the law was the underlying reasonable excuse in the mind of these women”. She therefore “allowed evidence so far as the defence of necessity at the time of the offence was concerned and also, the law by an expert to assist me in reaching a decision.” At the end of her Report at page 134 she re-iterates, “it was absolutely necessary for expert evidence to be led from an expert in international law, and whether or not it has ever been done in Scotland before seemed not to matter if I considered it essential. It did not seem appropriate that counsel, not necessarily skilled in international law should address me on such a vital part of the defence.” 119 9(32)
In any case involving international law, therefore, the domestic court should be permitted to decide whether to allow an expert to be called. The overall objective must be to ensure a fair trial with equality of arms. Article 6(1) of the European Convention on Human Rights guarantees the right to a fair trial. And Article 6(3)(d) guarantees a person charged with a criminal offence the right to “obtain the attendance and examination of witnesses on (her) behalf”. The Sheriff was therefore entitled to conclude that unless expert evidence as to customary international law was admitted, the defendants would not have had a fair trial because customary international law was an essential part of their defence.
It might also be useful to note that I asked just one well-known International Lawyer in England, Professor Nicholas Grief, 120 which cases he had appeared in as an expert witness on international law as it applies in the UK and he cited at least 5 cases from 1984 to 2000. The first – Langran (Inspector of Taxes) v. Hayter, Exeter County Court, 27 November 1984 – went to the Court of Appeal on 4 June 1985 but his affidavit evidence as to the legal status of nuclear weapons was not an issue in the appeal. The most recent of his appearances, where he gave viva voce evidence – R v Crane and others, West Berkshire Magistrate’s Court, 16 February 2000 – was in another Trident Ploughshares case. It is thus clear that in England evidence can be led as to the content of customary international law as it applies to the UK.
Interjection by the Court at Page 43 at the end of Paragraph 9(33).
LORD PROSSER: Can I raise the question again. Your submissions raise what I would say are two, perhaps two different questions which is that you say that the Court should be permitted to decide whether a witness at the Court has a discretion and on that line of thought it is just really for the Court obviously and it would be for the determination of the Court to decide whether the Court needs to illuminate its own understanding on the points of law which are essential for the Court and it is also really on quite a different question on whether there might be a right of a party and perhaps particularly under reference to the Convention of Human Rights on whether there might be a right of a party to have such a witness and the way that would normally be allowed to have such a witness on any relevant matters. At the moment I find it easier to believe that the Court in its discretion might decide it is going to be useful to allow it rather than decide on the point of law and the right of a party to insist on it. There is a difference and it goes into this on the matter of the law and I think if you look at the material which they are not obliged to do then that is a history that it goes into in the textbooks by looking at the authorities and the textbook is written by the author and once the writer is dead then of course that leaves what the writer has written as of paramount importance, and it may be a question for the Court if they think it is useful and it is there and they have a right.
MISS ZELTER: I would be arguing that I have a right at the very least and there is the discretion but I am constrained by the way in which the question was asked, the question in a trial under the Scottish Criminal procedure under which it is competent to lead evidence.
LORD PROSSER: You are saying you shouldn’t have been constrained by the precise boundaries of the question. That you shouldn’t feel too inhibited.
At this stage Miss Zelter continued her written statement.
In other jurisdictions too International Law experts have been accepted as relevant and useful. Perhaps I can remind you of the testimony of Professor Boyle at page 11A-D where he confirms that he had “testified as an expert witness on nuclear weapons and international law several times in the United States courts, State and Federal”, “in United States military court martial proceedings” and “also in Canada too”. 121 9(35)
The High Court of Justiciary should not answer this question to the effect that it is never competent to lead the evidence of an expert international lawyer as a witness in Scottish criminal proceedings as to customary international law. It would be unwise to leave the courts in a position where they are unable to get advice from experts on subjects outside their knowledge and expertise.
Question 2 asks “Does any rule of customary international law justify a private individual in Scotland in damaging or destroying property in pursuit of his or her objection to the United Kingdom’s possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?”
This question is not appropriate in the circumstances of this case and should not be answered.
This second question of law as stated is premised on the view that our intent in doing what we did amounted in law to no more than a demonstrative protest at the U.K.’s possession of nuclear weapons and its policies and actions in relation to them. This misrepresents and wholly underestimates our declared intent. Further, our plea of justification – in effect upheld by the Sheriff – does not depend on our objections to the policies and weapons, but on the alleged criminality of the U.K.’s nuclear weapons posture. The question is thus inept and does not advance matters. The Court should decline to answer it.
If the Court nevertheless does intend to answer this question then I must point out several matters.
i) With respect to the way the question asks whether there is any rule to justify individuals carrying out specific actions it must be pointed out that this is beside the point. I could just as easily say that there are no specific rules preventing such action. It progresses us no further. One would not expect international law which relates to very general and wide-ranging principles and rules to specify how criminal actions carried out by a specific State, like the UK, can be stopped by its own citizens in Scotland.
Before I continue it may be worth pointing out here that international law nevertheless does specifically subject war crimes, crimes against peace and crimes against humanity to universal jurisdiction and thus it logically follows that actions intended to prevent these crimes can also be carried out universally. Dixon states, “war crimes and crimes against humanity … are crimes susceptible to universal jurisdiction under customary international law and may be prosecuted by any state”. 122
Interjection by the Court at Page 45 at the end of Paragraph 10(6).
LORD PROSSER This is on the subject of war crimes, crimes against peace and crimes against humanity and crimes against peace were treated as a separate category, there was a separate categorisation, but the later categorisations were for war crimes so it is a slide in phraseology. Perhaps it doesn’t matter much.
At this stage Miss Zelter continued her written statement.
To continue – I hold that it is an integral part of any civilised judicial system that there is a right to prevent crimes, especially those as serious as the conditional intention to use weapons of indiscriminate mass murder. Certainly there is an undisputed right for individuals within the UK as a whole to use reasonable force to prevent the commission of serious crimes.
In the same way as the International Court of Justice clarified that although there is no specific authorization of the threat or use of nuclear weapons in international law, there is also no universal prohibition 123 and then went on to apply the principles and rules to the question of the use or threat to use nuclear weapons in general, so should we here, now look at the principles of law and apply them impartially and with wisdom to the issues before the Court today.
I think this Court must face squarely the psychological processes that are taking place underneath the whole of this LAR process including this hearing. We are not in a vacuum. We are all part of a society that has been traumatised and corrupted by the actions of our State over the last hundred years, which has, step by step, led from the brutal excesses of our colonial past, to the concentration camps of the Boer War, to the aerial bombardment of German city centres, to the ongoing bombarding of civilian infrastructure in Iraq that is continuing at this very moment by the RAF, to our present descent into official weapons of indiscriminate mass murder. Moreover, neither the UK, nor the other Allied States, has ever been confronted by the world community in a War Crimes Tribunal, nor unlike Germany and Japan, ever had to apologise, pay compensation and come to terms with its own wrong-doing.
This terrible legacy from the past means that it is very difficult for many people, including some in this Court, to look at British nuclear weapons, at Trident, at what is going on at Faslane and Coulport, in any objective and rational manner. There is a fear of what implications this may have on past crimes and present policies and a desire to try to keep these crimes closed in the cupboard rather than face the consequences, which would undoubtedly affect our view of the United Kingdom’s place in the world. It is easier to think in terms of strict good and evil, perfect friends and monstrous enemies, final solutions – rather than face the complexity of the real world and to see Trident for what it really is and face up to the necessity for global justice and the rule of law in order to encourage our own and others’ long-term security.
For in fact, the nuclear weapons on board Trident are anathema to law. To accept the legality of Trident – is to accept the legality of mass murder – is to bring the law into contempt. The very basis of law is to protect innocents but the very basis of nuclear weapons is to threaten mass destruction. Clever lawyers may attempt to distort the law and prove that somehow if the State authorizes weapons of mass destruction then the matter is closed because the State can choose whatever means it likes to ’defend’ itself but this is a corruption of the law and any State that does this ultimately loses legitimacy. The law cannot survive such corruption. Our society cannot survive such mendacity, as we can see if we care to look at the crumbling morality around us.
The UK Prosecutor, Sir Hartley Shawcross, in his final speech at Nuremberg, in 1946. said, “There is no rule of International Law which provides immunity for those who obey orders which – whether legal or not in the country where they are issued – are manifestly contrary to the very law of nature from which International Law has grown. If International Law is to be applied at all, it must be superior to State Law in this respect, that it must consider the legality of what is done by International and not by State law tests.” 124 10(13)
He went on to say, “It is true that the lawyers and the statesmen who, at the Hague and elsewhere in days gone by, built up the code of rules and the established customs by which the world has sought to mitigate the brutality of war and to protect from its most extreme harshness those who were passive non-combatants, never dreamed of such wholesale and widespread slaughter. But murder does not cease to be murder merely because the victims are multiplied ten millionfold. Crimes do not cease to be criminal because they have a political motive.” 125 10(14)
Judge Bedjaoui, the President of the International Court of Justice said in the recent Advisory Opinion, in 1996, in respect of nuclear weapons, “By its very nature the nuclear weapon, a blind weapon … has a destabilising effect on humanitarian law, the law of discrimination which regulates discernment in the use of weapons used. Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a major challenge to the very existence of humanitarian law, not to mention their long-term harmful effects on the human environment, in respect to which the right to life may be exercised. Until scientists are able to develop a ’clean’ nuclear weapon which would distinguish between combatants and non-combatants, nuclear weapons will clearly have indiscriminate effects and constitute an absolute challenge to humanitarian law. Atomic warfare and humanitarian law therefore appear to be mutually exclusive; the existence of the one automatically implying the non-existence of the other.” 126 10(15)
Judge Weeramantry, also in the ICJ Advisory Opinion Hearings, stated, “all the postulates of law presuppose that they contribute to and function within the premise of the continued existence of the community served by that law. Without the assumption of that continued existence, no rule of law and no legal system can have any claim to validity, however attractive the juristic reasoning on which it is based.” 127 10(16)
ii) Now I would like to unpack a little the word ’justify’. This question we are looking at arises out of the Greenock Trial and this context is of the utmost importance because a different answer could be given depending on what the specifics of the case may be. In other words generalities are likely to be misleading and dangerous. It is therefore imperative to continually link the question to the specifics of the Greenock Trial. Underlying the question, there is an implication that there was no justification for damaging and destroying Trident related equipment.
I refute this. I hold that there is justification in UK and in Scots law for private individuals to damage or destroy if they need to do this to prevent a terrible catastrophe or injury or loss of life or stop the commissioning of major crime – especially if the law enforcement agencies refuse to stop it for you. Most legal systems have similar legal justifications.
For instance, if someone took a loaded machine gun from a man in a crowded underground where he was threatening people with it and threw it under the train where it was destroyed – that destruction would be considered as justifiable.
The Trident context is more controversial because it involves State complicity – which is where impartial common sense must come in along with a good moral sense and a global perspective. Maybe it is easier psychologically to place the justifiable acts of property destruction into a proper perspective if we put them into another context – far enough away to be more balanced. For instance, I am sure that no-one in the Court would say that an Iraqi citizen would not have been justified in attempting to destroy an essential part of the chemical weapon system that was used to gas the village of Halabja in order to prevent that terrible crime taking place or to suggest that such an act would have been criminal.
And to take another example, during the Nuremberg trials various industrialists who had manufactured the Zyklon B gas used to exterminate victims in the Nazi concentration camps were convicted and hanged as criminals 128 and I am sure that no-one here would suggest that any citizens would be criminal if they had tried to stop that Zyklon gas from reaching the concentration camp in the first place by destroying any of the equipment used. It would be a nonsensensical legal system that could punish the perpetrators of such a horrendous crime after it had taken place but not allow people to prevent the crime in the first place. 10(21)
A similar case can be made out to justify the disarmament of ’Maytime’. It is important to remind you of the arguments I made earlier about the specific illegality and criminality of Trident. May I also stress that we were acting to prevent crimes that came out of the specific British Trident nuclear weapons system and not acting against nuclear weapons “in general”. It is also important to remind everyone that we used reasonable force in the circumstances. We did not blow up the nuclear submarine base or set fire to the research lab. We carefully, nonviolently and safely threw the equipment from Maytime into a deep loch so that it could not be used again to help Trident in its criminal activities.
Interjection by the Court at Page 49 at the end of Paragraph 10(21).
LORD PROSSER: On this argument provided that you don’t kill people, that you don’t blow up a submarine base, can it be justified, it would be far more likely to avert the crime than the somewhat more removed act. This argument was that you would be justified in blowing up the base.
MISS ZELTER: Yes, I think it is, I think some individuals aren’t willing to have any risk of hurting anybody, but the argument, you are right would justify it.
LORD PROSSER: Certainly as long as it was things rather than people you are destroying.
At this stage Miss Zelter continued her written statement.
iii) The question asks us to look at the rules of customary international law but in fact we have to look at the inter-relationship between international and domestic law. For instance Article 38 of the Statute of the International Court of Justice sets forth the sources of international law and states that one of the sources is what is known as “the general principles of law recognised by civilised nations.” 129 One of these general principles of law recognised by all civilised nations is the duty to act to prevent the commission of a crime. And so, under international law, as a general principle of law, there is a duty to act to prevent the commission of threatened war crimes, crimes against peace, and crimes against humanity. As a matter of common law there is also a common law right to take steps necessary to inhibit this type of activity.
In other words we can look to both international and to national law to give authority to the disarmament of ’Maytime’. This could be a source of confusion so I would like to try to unravel it a bit.
In some international law contexts there may well be a problem of deciding which jurisdiction – Scots or IL – applies, because it is conceivable for an act to be technically lawful within one jurisdiction but not the other.
Nevertheless, as the US Prosecutor, Dodd, said at Nuremberg, “The Tribunal will give a warning …mankind will know: that no crime will go unpunished because it was committed in the name of a political party or of a State, that no crime will be passed by because it is too big; that no criminals will avoid punishment because they are too many.” 130 10(26)
I hold that since Nuremberg any of the Nuremberg Crimes i.e. Crimes against Peace, War Crimes and Crimes against Humanity, can never technically be lawful within any domestic jurisdiction – there is absolute adherence to these Nuremberg Principles and they take precedence over all other legal systems.
Moreover, within our context here, I hold that under international law there is a right, which in certain circumstances, for instance if you are a Commander in the field, even becomes a duty, for anyone to prevent the commission of the Nuremberg crimes wherever they are taking place, regardless of the state of the domestic law in that individual’s country.
The right to prevent the commission of a crime against humanity can be derived from the principles of humanity coupled with that of individual responsibility.
The Martens Clause (as contained in the Additional Protocol 1 of 1977) refers to the “principles of humanity”. It states “In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of the public conscience.” 131 10(30)
The ICJ explained that the Martens Clause was “an effective means of addressing the rapid evolution of military technology” 132 and applied to nuclear weapons. For a full discussion of the implications please refer to Judge Weeramantry at page 34 to 36 of his opinion 133 and to Moxley’s book at page 210-214 134 where they explain the incompatability between the Martens Clause and nuclear weapons. As Judge Weeramantry concludes “The attempt to place nuclear weapons beyond the reach of these principles lacks the support not only of the considerations of humanity but also of the considerations of logic”. 135
Interjection by the Court at Page 50 at the end of Paragraph 10(30).
LORD PROSSER: Page 34.
MISS ZELTER: It is the Dissenting opinion at Page 34. It is in the big bundle for the Crown. It is the whole of the Opinion of Judge Weeramantry. I am going to read a page in the Martens Clause specifically because it relates to public conscience and it is Page 34. “The Martens Clause has commanded general international acceptance. It has been incorporated into a series of treaties, as mentioned elsewhere in this Opinion, has been applied by International Judicial Tribunals, has been incorporated into military manuals 91, and has been generally accepted in international legal literature as indeed encapsulating in its short phraseology the entire philosophy of the law of war. At the Krupp Trial (1948) it was described as: ’a general clause, making the usages established among civilised nations, the laws of humanity and the dictates of the public conscience into the legal yardstick to be applied if and when the specific provisions of the Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare’ 92. The clause has been described by Lord Wright as furnishing the keynote to the Haig Regulations which particularize a great many war crimes, ’Leaving the remainder to the governing effect of that sovereign clause which does really in a few words state the whole animating and motivating principle of the law of war, and indeed of all law, because the object of all law is to secure as far as possible in the mutual relations of the human beings concerned the rule of law and of justice and of humanity’ 93. The Martens clause has thus become an established and integral part of the corpus of current customary international law. International law has long passed the stage when it could be debated whether such principles had crystallised into customary international law. No state today would repudiate any one of these principles. A generally accepted test of recognition of rules of customary international law is that the rule should be ’so widely and generally accepted, that it can hardly be supposed that any civilised State would repudiate it’. While no state today would repudiate any one of these principles, what seems to be in dispute is the application of those principles to the specific case of nuclear weapons which, for some unarticulated reason, seem to be placed above and beyond the rules applicable to other weapons. If humanitarian law regulates the lesser weapons for fear that they may cause the excessive harm which those principles seek to prevent, it must a fortiori regulate the greater. The attempt to place nuclear weapons beyond the reach of these principles lack the support not only of the considerations of humanity, but also of the considerations of logic. These considerations are also pertinent to the argument that customary law cannot be created over the objection of the nuclear weapon States (United States Written Statement Page 9). The general principles of customary law applicable to the matter commanded the allegiance of the nuclear weapon States long before nuclear weapons were invented. It is on those general principles that the illegality of nuclear weapons rests. It seems clear that if the principles are accepted and remain undisputed, the applicability of those principles to the specific case of nuclear weapons cannot reasonably be in doubt.” Then “This phraseology, stemming from the Martens Clause, lies at the heart of humanitarian law. The Martens Clause and any subsequent formulation of humanitarian principles recognise the need that strongly held public sentiments in relation to humanitarian conduct be reflected in the law. The phrase is, of course, sufficiently general to pose difficulties in certain cases in determining whether a particular sentiment is shared widely enough to come within this formulation. However, in regard to the use or threat of use of the nuclear weapons, there is no such uncertainty, for on this issue the conscience of the global community has spoken, and spoken often, in the most unmistakable terms. Resolutions of the General Assembly over the years are not the only evidence of this. Vast numbers of the general public in practically every country, organised professional bodies of a multinational character, and many other groupings across the world have proclaimed time and again their conviction that the public conscience dictates the non-use of nuclear weapons. Across the world, presidents and prime ministers, priests and prelates, workers and students, and women and children have continued to express themselves strongly against the bomb and its dangers. Indeed, this conviction underlies the conduct of the entire world community of nations when, for example, in the NPT, it accepts that all nuclear weapons must eventually be got rid of. The recent Non-Proliferation Reviewing Conference of 1995 reconfirmed this objective. The work currently in progress towards a total test ban treaty reconfirms this again. Reference is made in the next section to the heightening of public sensitivity towards humanitarian issues, resulting from the vast strides made by human rights law ever since the United Nations Charter in 1945. General Assembly resolutions on the matter are numerous. To cite just one of them, Resolution 1653(XV1) of 1961 declared that: ’The use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of United Nations.’ And asserted, with more specific reference to international law, that such use was ’contrary to the rules of international law and to the laws of humanity’. In addition, the ’effect’ to use nuclear weapons, and not merely their actual use, has been referred to by the General Assembly as prohibited. Nuclear weapons have been outlawed by treaty in numerous areas of planetary space – the sea-bed, Antarctica, Latin America and the Caribbean, the Pacific, and Africa, not to speak of Outer Space. Such universal activity and commitment would be altogether inconsistent with a global acceptance of the compatibility of these weapons with the general principles of humanity. They point rather to a universal realisation that there is in them an element which deeply disturbs the public conscience of this age. As has been well observed in this regard: ’In this burgeoning human rights era especially, respecting an issue that involves potentially the fate of human civilisation itself, it is not only appropriate but mandated that the legal expectations of all members of human society, official and non-official, be duly taken into account’. It is a truism that there is no such thing as unanimous opinion held by the entire world community on any principle, however lofty. Yet it would be hard to find a proposition so widely and universally accepted as that nuclear weapons should not be used. The various expressions of opinion on this matter ’are expressive of a far-flung community consensus that nuclear weapons and warfare do not escape the judgment of the humanitarian rules of armed conflict’. The incompatibility between ’the dictates of public conscience’ and the weapon appears starkly, if one formulates the issues in the form of questions that may be addressed to the public conscience of the world, as typified by the average citizen in any country. Here are a few questions, from an extensive list that could be compiled: Is it lawful for the purposes of war to induce cancers, keloid growths or leukaemias in large numbers of the enemy population? Is it lawful for the purposes of war to inflict congenital deformities and mental retardation on unborn children of the enemy population? Is it lawful for the purposes of law to poison the food supplies of the enemy population? Many more questions could be asked. Is it conceivable that any of these questions can be answered in the affirmative by the public conscience of the world, there may be a case for the legality of nuclear weapons. If it is not, the case against nuclear weapons seems unanswerable”.
LORD PROSSER: Before we pass from that. We are at Paragraph 10(28) which you have just passed by in your submissions and you say “The right to prevent the commission of a crime against humanity can be derived from the principles of humanity coupled with that of individual responsibility”, and what Judge Weeramantry says about unacceptability in conscience terms of having such weapons that would bear on your argument that they are illegal and I think that doesn’t really touch on whether it follows from that that there was a right of intervention to stop it. So we have got this fundamental question that you were coming to later.
MISS ZELTER: I am setting up the principles of humanity.
At this stage Miss Zelter continued her written statement.
At para. 95, the ICJ referred to “the overriding consideration of humanity” (my emphasis) 136 See also the Corfu Channel Case, ICJ Reports 1949, pp. 4, 22, where the ICJ held that Albania’s obligations were based on “elementary considerations of humanity, even more exacting in peace than in war” 137 10(32)
Surely the principle of humanity does not only bind States? In Oppenheim’s International Law, at page 998, concerning the evolution of the principle that States have the right to punish foreign nationals for crimes against humanity, the authors refer to “recognition of the supremacy of the law of humanity over the law of the sovereign state when enacted or applied in violation of elementary human rights in a manner which may justly be held to shock the conscience of mankind.” 138 10(33)
The supreme law of humanity must bind individuals as well as States and involve responsibilities as well as rights. As the Nuremberg Tribunal held, the essence of the Nuremberg Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the State. It is but a short step from the Nuremberg Tribunal’s conclusions about individual responsibility to the position advocated by Trident Ploughshares. As Edmund Burke once said, “The only thing necessary for the triumph of evil is for good [people] to do nothing.” We none of us ever know the ultimate consequences of what we do. We may never know how effective our acts of disarmament and civil resistance are. But we certainly know that an acquiescent and supine public leads to power abuses by governments. One of the reasons nuclear weapons have never yet been used on purpose since Hiroshima and Nagasaki is because of the sheer weight of public condemnation and concern and the stigma that would attach to any State that did use them. Such public pressure has to be continually shown in order to be effective. It is a responsibility that is terrifying in its necessity. And, of course, such public pressure alone is not enough, it cannot protect us from accidents for instance.
Page 51… “Such public pressure has to be continually shown in order to be effective. It is a responsibility that is terrifying in it’s necessity”. And of course such public pressure alone is not only, it cannot direct us to the question for instance of…
LORD PROSSER: I think you possibly repudiate the idea that what you were doing was applying public pressure although it might have that effect but that wasn’t your purpose.
MISS ZELTER: No, it is just connecting in with what the Nuremberg Charter was saying. At this stage Miss Zelter continued her written statement.
In his separate opinion appended to the Advisory Opinion of the ICJ, Judge Ranjeva observed that the prohibition of nuclear weapons is “a question of the responsibility of all and everyone”. 139 I take that responsibility very seriously.
It is also arguable that our arrest, imprisonment and trial constituted an unlawful interference by the State with the exercise of our right to freedom of expression which is guaranteed by Article 10(1) of the European Convention on Human Rights.
In Steele v. United Kingdom, the European Court of Human Rights held that protests which took the form of physically impeding activities of which the applicants disapproved were expressions of opinion within the meaning of Article 10(1). 140 Under Article 10(2) of the Convention, any interference with the exercise of the freedom of expression must be “necessary in a democratic society” to achieve one of the legitimate aims specified. The rule of law is one of the fundamental principles of a democratic society. 141 How then can interference be “necessary in a democratic society” if it supports, facilitates or otherwise assists illegal State activity?
(N.B. This is another reason why it must have been competent to lead evidence as to the content of customary international law as declared by the ICJ in its advisory opinion – to show how the State activity is illegal)
Furthermore, even if there was no such right in international law there is still a customary right within Scots Law to prevent crimes. The argument would be that if it is unlawful in international law to be maintaining Trident in its current form then this means it is lawful in Scots Law to use reasonable means to stop it.
iv) The question talks about ”
– international law traditionally operated at the level of States and was not seen as attaching to heads of State or national leaders. State sovereignty protected individuals. However, the horrendous violations of basic human dignity in World War II decisively changed the situation. Had Hitler or Mussolini survived they would have been tried as war criminals. So strong was the feeling regarding war crimes that even the direct orders of such heads of State afforded no protection to officials implementing them. The Nuremberg Tribunal held that the imposition of duties and liabilities upon individuals had long been recognised.
“Crimes against International Law”, observed the Tribunal, “are committed by men, not by abstract entities, and only by punishing individuals who counsel such crimes can the provisions of international law be enforced”. It went on to state “the very essence of the (Nuremberg) Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual 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 authorizing action moves outside ts competence under International Law”. 142 10(40)
The concept of individual responsibility was confirmed by the British Lord Chancellor in 1963 when he stated in Parliament that the UK looked upon the Nuremberg Principles as “generally accepted among States and have the status of customary International Law.” 143 Individual responsibility is not only well-recognised, but is a concept of growing importance in international law.
Interjection by the Court at Page 52 at the end of Paragraph 10(40).
LORD PROSSER: There is really no doubt again that it can be taken in domestic Courts but it is really that concept that has led in the past to the setting up of ad hoc Tribunals like Nuremberg and the more recent one which is moving to have a proper structure because it is not saying it is a crime if you have not yet to try it and no party to punish and that is how you would see it as an ad hoc example, and Rome came to the standard Court to try and punish by international law agreement, at international law level.
MISS ZELTER: And unless they were able to take it from a state leader there would be a progression coming towards us.
At this stage Miss Zelter continued her written statement.
The Lord Advocate’s question carefully talks about private individuals to perhaps give the impression that whilst these Nuremberg principles of individual responsibility do apply to individual members of the armed forces or governments, they do not apply to individual private citizens. However, the trials of various industrialists heard at the British Military Court at Hamburg in 1946 clearly show the application of individual responsibility to private citizens as well.
Interjection by the Court at Page 52 at the end of Paragraph 10(41).
LORD PROSSER: That is answerability for a crime which still leaves open the question of the right to enforce by prevention.
At this stage Miss Zelter continued her written statement.
One example, that I used in my original legal submissions at Greenock is of the case of Bruno Tesch, who was the owner of a firm that supplied the prussic acid gas, known as Zyklon B, to the Nazi concentration camps, where it was used to kill four and a half million people in Auschwitz/Birkenau alone. He and other private individuals were charged with a war crime as accessories before the fact and were eventually found guilty and put to death. The British Jurisdiction was based on “the general doctrine called Universality of Jurisdiction over War Crimes, under which every independent State has an International Law jurisdiction to punish … war criminals.” The decision of this British Military Court is a clear example of the application of the rule that the provisions of the laws and customs of war are addressed not only to combatants and to members of the state and other public authorities, but to anybody who is in a position to assist in their violation. 144 10(43)
At the risk of appearing tedious I wish to point out once again that not only does individual responsibility apply to violations of international law but also to prevention of crime.
v) There could be some debate about whether the term “property” can be used to describe objects that are used for unlawful purposes and certainly I object to the tone of the word conferring some kind of respectability and normality on objects which I consider as more accurately described as mass killing equipment. It would be better to qualify the word “property” with the phrase “which is being used for criminal purposes”.
Interjection by the Court at Page 53 Paragraph 10(44)… “It would be better to qualify the word ’property’ with the phrase ’which is being used for criminal purposes’”
LORD PROSSER: I think “property” is just a lawyer’s word for ownership.
MISS ZELTER: I think the way that it is worded the rights can be conferred on unlawful objects.
At this stage Miss Zelter continued her written statement ending at Page 54 Paragraph 10(48).
vi) The use of the word ”
in the question is also misleading. We are not talking about objections here but our legal rights – the right to live without fear of nuclear annihilation and the right to prevent the commission of crimes. One does not ’object’ to the threatened destruction of the planet – it is a matter of life or death. We are all in imminent danger. None of us know when nuclear weapons will be used – by design or accident – but we know that sooner or later they will be, if we do not disarm them, and meanwhile our planet is becoming more and more contaminated with long-lasting nuclear contamination as accidents and wastes proliferate.
’Objection’ implies a matter of opinion or a political view, a state of mind, rather than action to protect the very possibility of life. We are talking here about a fundamental and deep-rooted instinct for self-preservation – the right to life itself.
It would be more accurate to put into the question that we were trying to prevent a terrible crime. After all that is what the evidence at Greenock shows. For instance the Sheriff, in her Report at page 135, stated, “I was not able to find that what these three women did was done with any criminal intent, but only in an attempt to prevent what they honestly believed to be a much greater crime’. (my emphasis). Also in answer to a direct question from the PF on 13/10/99 in cross-examination I stated very clearly “I am not running a political campaign. I am trying to prevent nuclear crimes”. (my emphasis). I presented evidence to show this and it was accepted by the Sheriff. The Sheriff reports my evidence given in cross-examination at page 32, “When asked if their aim was to influence and change government policy she replied “No”; she was trying to prevent any country in the world committing mass murder” (my emphasis) and again at page 33 she “said that her action on 8 June was directly trying to prevent a crime.” (my emphasis). 145 10(48)
The way this question is phrased at the moment is premised on the view that our intent in doing what we did amounted in law to no more than a demonstrative protest at the U.K.’s possession of nuclear weapons and its policies and actions in relation to them. This misrepresents and wholly underestimates our declared intent. Our plea of justification – in effect upheld by the Sheriff – does not depend on our objections to the policies and weapons, but on the alleged criminality of the U.K.’s nuclear weapons posture. The question is thus inept and does not advance matters.
After an adjournment for lunch
Miss Zelter continued her written statement at Paragraph 10(49).
vii) And finally the question talks about ”
– however, the facts in the original case made it clear that we were not talking merely about possession of nuclear weapons. The context of our disarmament action was one of active deployment of 100 kiloton nuclear warheads. The warheads were and are still being deployed.
Indeed in the first open Letter to the Prime Minister written by Trident Ploughshares in March 1998 this was the third of our nine “visible and verifiable” elements needed to show “genuine progress toward disarming Britain’s nuclear capability”. We wrote that “All British nuclear warheads must be removed from their delivery systems and stored separately.” 146 But this request has never been acceded to. If it had we might have been talking about mere “possession”. 10(51)
As it is, however, there is always at least one Trident at sea armed with tens of warheads of 100 kilotons each plus the deterrence policies and plans to use them. Trident submariners are willing and able to press the nuclear buttons and regularly practice such launches on exercises. Expert evidence was led and accepted without rebuttal on the issue of current deployment and threat to use. I was cross questioned by the Procurator Fiscal on the issue of possession and what the ICJ had said about possession but in response said, “We are not talking about pure possession, but about deployment.” I made it quite clear in my answer that the ICJ Advisory Opinion was not asked to rule on the possession of nuclear weapons but on the threat or use of nuclear weapons. I did not get the opportunity to expand on my views on possession in the witness box but certainly did not concede that possession was lawful only that possession per se was not an issue when looking at the British Trident system. I still do not concede that possession of 100 kt nuclear warheads could ever be lawful because I cannot see how they could ever be used lawfully and to this extent I would argue that the Helen John Appeal came to the wrong conclusion because there was not an informed argument put on both sides. However, we do not need to go into this here.
I would like to emphasise that Sheriff Gimblett also accepted that we were not acting against “possession per se” but against the deployment of Trident. See her, in her Report at page 2, where she says, “this trial was not concerned with the possession of nuclear weapons” and on page 38 where she reports on my evidence where I said what I “was talking about was the active deployment of loaded Trident submarines” and that “What was at issue in this trial was the active deployment and the moving them that was seen as a threat”. 147
Interjection by the Court at Page 55 at the end of Paragraph 10(52).
LORD PROSSER: The things you did would have no effect on possession, they might affect the ability to deploy but they couldn’t affect the fact of possession.
MISS ZELTER: No.
At this stage Miss Zelter continued her written statement.
I had also quoted in my evidence from the witness box, Paragraph 48 of the ICJ Advisory Opinion which says that possession and deployment of a weapon with the stated conditional intention to use it would constitute an illegal threat if the purpose of its use would inevitably violate the principles of necessity and proportionality. Paragraph 42 says that even a proportionate response to a threat or attack would still have to meet the requirements of humanitarian law. This would have to require discrimination. 148 10(54)
The use in the phraseology of the question of the euphemism “placing such weapons at locations within Scotland” is a continuation of this misleading idea of pure possession. It suggests that what the UK does is simply place its weapons in some hidden corner as some never to be used ultimate deterrent that will be so effective it will never be used. However, the reality is quite different and we made that clear at Greenock. These weapons are not just placed in Scotland, they are operationally based at Faslane with many hundreds of workers, tons of equipment and millions of pounds worth of resources, keeping them at a moments notice to fire off indiscriminate weapons of mass destruction. The spare nuclear warheads are stored a few miles away at Coulport and Tridents regularly visit Coulport to exchange their warheads for checking and maintenance. Tridents are regularly going up and down the Clyde on the way out to patrol. The Trident Vengeance, just last month, test-fired its missiles in the USA. They patrol the oceans and occasionally allow themselves to surface and be seen in areas of conflict. They are a continuing threat. The reality is that Trident is always on a war footing. Crises can appear very quickly and no submariner ever knows if he will be the one to start off a nuclear holocaust.
Interjection by the Court at Page 55 at the end of Paragraph 10(54).
LORD PROSSER: Can you remind me, you mentioned them being seen there in public, can you remind me if there were other conventional armaments. I mean using these submarines in any other way other than the nuclear…?
MISS ZELTER: If it is defensive, to protect the submarine, the actual use of nuclear, they didn’t have conventional weapons, they are purely nuclear.
At this stage Miss Zelter continued her written statement.
It is interesting to note, as an aside, that, in the ICJ Advisory Opinion, it was discussed that in fact when talking about nuclear weapons, possession could not be artificially separated from threat and use. The threat to use naturally inheres to the possession. Rather than go through the arguments again, I remind you of and refer you to my submission on the illegality of Trident where I dealt with this issue.
And finally, the question being so general, does not talk about the very specific circumstances at the time of our disarmament action. We gave evidence through the joint statement that we had left on ’Maytime’ 149 from the witness box and through our expert witnesses, which was not rebutted, to the effect that June 8th was a time of special crisis and concern. We were at war in Iraq and in Kosova. As the Sheriff said in her Report at page 151A-B, it was a “time of great international unrest”. 150 10(57)
A fairer wording for Question 2 would have been :-
“Does international law and/or Scots law justify an individual in Scotland in damaging or destroying property which is being used for criminal purposes, in order to prevent those criminal actions being carried out by the United Kingdom – namely the United Kingdom’s deployment, within and without Scotland, of Trident nuclear warheads and its threat to use such warheads in accordance with HM Government’s current defence policy.”
And my answer to such a fairly formulated question would have been an unequivocal yes – both international and domestic law justify individuals in damaging and destroying the Trident system.
However, if the question remains as it stands then my answer is that this question is not appropriate in the circumstances of this case and should not be answered.
Interjection by the Court at Page 56 at the end of Paragraph 10(59).
LORD PROSSER: One could answer it in such a way as to spill through to your version by saying not a universal negative but a description of the circumstances in terms of your questions. If we return to what we were dealing with we would be dealing with the matters raised in your formulation, the question of the boundaries of possession and so on and you could still make it plain that a possessor cannot do these things.
At this stage Miss Zelter continued her written statement.
Question 3 asks “Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?” 11(2)
This question also is not appropriate in the circumstances of this case and should not be answered.
This question misses the point entirely. Belief can be a vague, undefined feeling – a personal understanding that does not necessarily have any wider significance. Belief is an imprecise term that is not the same as ’objective knowledge’. The issue in the case was not whether we ’believed’ Trident to be unlawful, but that we knew in FACT that it IS unlawful, and that we reasonably believed our actions would help terminate its existence. The basis of our disarmament action was, in other words, stronger than belief. It was a conviction based on fact and legal argument provided by the world’s highest judicial authority. The defence presented evidence that was not rebutted by the Crown. By using the “belief” phraseology, the Crown takes for granted that the threat or use, or even deployment, of Trident would not be illegal. To save repetition of my arguments on the criminality of Trident I refer you to my arguments in Section 4 pages 9 to 30 of this submission.
Neither I nor Greenock Court relied on ’belief’ to sustain our defence but on well reasoned argument and evidence. This is not the same as belief. As the Sheriff said on page 3 of her report, “The trial related to their understanding of international law based … on an in-depth study of international law, customary law ad bellum and in bellum … and had formed an unchallenged, sincere, unshakeable view not just of the illegality of the use of nuclear weapons … but of the … ongoing threat of use of nuclear weapons.” 151 11(5)
This third question of law focuses solely on an accused’s belief that actions are justified in law without regard to any wider factors including the grounds of such belief and its reasonableness in the circumstances. This oversimplification renders it inept. Mere belief that actions are justified in law could not of itself found a successful plea of justification in law. But that does not mean that there is no room for the doctrine of justification in an appropriate context in Scots law. The court should decline to answer this question also.
Question 3 is linked to Question 1 in that we need to lead evidence as to the content of international law in order to demonstrate that our belief is not just a belief but is a reasonable belief – a fact even – and can be shown to be such. If it is just assumed that we have no knowledge of “legal justification of our actions”, that we just hold a belief, and the Court comes to this opinion because of its own ignorance of international law, and does not allow evidence as to the content of international law to be led, then a grave injustice is done to the accused.
Question 4 asks “Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?”
This question as it is presently phrased should be answered to the effect that, depending on the particular circumstances of the case, it may or may not be a defence to a criminal charge that the alleged offence was not criminal but an attempt to prevent or bring to an end the criminal conduct of another or others.
However, this fourth question of law raises an issue of principle – whether Scots law admits a defence to a charge that what was done was directed to preventing or ending another’s criminal actions. It can reasonably be submitted that in appropriate circumstances such a defence could and should be allowed. It would turn crucially on the particular facts and circumstances. In this sense it could hardly be categorised as a general defence. Appropriately qualified this question could be answered in the affirmative.
The question is badly written in that it makes out that if we had reasonable grounds for our action it would still be an ’offence’. At the very least the question should have worded it as an ’alleged offence’. We were not saying that we committed an offence and had a general defence (e.g. unsound mind) but that we did not commit an offence in the first place. In the case of malicious mischief, to have committed this offence, we would have had to have had deliberate disregard for the rights of others. But we were arguing that these rights did not exist in the first place, because the whole operation was unlawful and so no offence was committed to start off with.
Perhaps a better wording for this question would have been, ’Is it a defence to a criminal charge to show that the conduct alleged to constitute an offence was the only means available to the accused person to prevent HM Government committing one of the most serious international crimes, or that it was undertaken in the reasonable belief that it was the only available means of preventing the commission of such a crime?’
The Sheriff, in her Report at page 135, stated, “I was not able to find that what these three women did was done with any criminal intent, but only in an attempt to prevent what they honestly believed to be a much greater crime. That honest belief in itself was based on informed opinion, given directly to them, and more particularly their actions were carried out at a time when all three considered that they and everyone else was in imminent danger from nuclear weapons.” She continues at page 136, “I considered that their defence had been well made out, remained uncontradicted and unchallenged, and that further there was no mens rea … I also had in mind that if one believes the police when giving evidence in trials involving knives and weapons one of the most common excuses given by an accused – not accepted by the court is – ’I only had it for my protection’. Even if the knife is carried for protection that is not considered a good reason even if there was some understandable reason for the person having the knife which might go to mitigation.” 152 12(7)
It is relevant here to remind the Court once more of Sir Hartley Shawcross (the Attorney General of the British Government who led the prosecution team at Nuremberg) who said that “Murder does not cease to be murder because the victims are multiplied ten million-fold. Crimes do not cease to be criminal because they have a political motive.” 153 12(8)
At Greenock the Procurator Fiscal tried again and again to cast our actions as those of vandals or thieves. He refused to look at the bigger picture. But the bigger picture is essential.
In the 1986 case of State of Vermont v. McCann we can see another global citizen acting to prevent crime. Harold McCann tried to stop US munitions from going to Central America where such munitions were regularly used “in random air attacks on civilian populations in … El Salvador.” 154 His crime prevention was presented as being justified by the principle of necessity. The case defines this through Glanville Williams’ words, “By necessity is meant the assertion that conduct promotes some value higher than the value of literal compliance with the law” and goes on to state, “Where a person has acted meritoriously (justification) he has no need for forgiveness (excuse) … Historically, there are relatively few recorded cases in which the concept appears. This is true because in most instances such cases are not prosecuted in the first place.” 155 12(10)
I think this is a very important point and explains why, although the principle of individuals preventing crime seems to be clear, yet it is difficult to find cases to illustrate it in practice. If our action had been one of nonviolently disarming the equipment essential to the mad plans of a local drugs dealer who was threatening to blow up a whole street of innocent families where his rival lived, we would probably not have been brought to trial.
The Vermont case is also useful because it cites the Yamashita case 156 to uphold the view that “International Law may, under appropriate circumstances, create ’an affirmative duty to take such measures as (are) within (an individual’s) power and appropriate in the circumstances’ to prevent criminal violations of international law.” 157 The case then goes on to explain the common-law privelege which allows one to prevent the commission of a crime by stating that, “An individual other than a government official is justified in using reasonable force to prevent or to terminate what he reasonably believes to be the commission of a crime.” 158 12(12)
I would like to remind you of my testimony concerning the frequent complaints about the illegality and criminality of Trident that I formally made to the police, courts, Attorney General, Lord Advocate etc. If you refer to the Sheriff’s Report on page 22 at the last paragraph she refers to these, “She outlined all that she had done by way of peaceful legal means to bring an end to nuclear weapons. She explained how she had tried to get the police to take up her cause of what she perceived was the illegality of nuclear weapons and how she herself had tried to raise action through the courts in England but on each occasion had been denied access to that remedy. She had been given different excuses by different magistrates being either that it was not in the public interest or that it was frivolous or vexatious, or the Crown would take over the proceedings she had already raised but then drop them on the basis that it was not worth proceeding with them. She had tried a direct approach to the Attorney General but was told it was the job of the police to make enquiries about her claim. So she went to the Norfolk police and wrote to the Chief Constable …” etc etc. 159 As a responsible citizen reporting a major crime that if not stopped could cause millions of deaths, what am I expected to do if I cannot get relief from the Executive, Legislature or Courts? If nothing comes out of this LAR that finally rids us of the threat from Trident I will have to make further disarmament attempts.
The lack of adequate redress from the authorities is not only negligent and culpable in itself but is clearly in breach of our international rights to have our grievances properly dealt with. There is a right of effective remedy in Article 8 of the Universal Declaration of Human Rights which states that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law” 160 where the undertakings of all State Parties (which includes the UK) are set down as being “(a) To ensure that any person whose rights or freedoms as herein are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.” 161 12(14)
Our appeals to the authorities have not led to an effective remedy. Trident and the UK Government nuclear deterrence policies have still not been examined directly and impartially and we still all live in daily terror of a catastrophic accident or purposeful use of the UK nuclear weapons that are still based here in Scotland. This is inexcusable. It is clearly unsatisfactory that ordinary women like Ulla, Ellen and myself should have to try to disarm these criminal weapons of mass destruction ourselves and yet we have no alternative at present. I am hoping that this Court at least will tackle the root issue and enable an effective remedy to be found to our distress and to secure for us relief from the horrifying threat to our ultimate right to life.
The legal systems of most civilised countries allow and encourage citizens to report and prevent crime, particularly serious offences. Most people understand that any legal system that does not act upon reports of major criminal activity or bring criminals to justice is undermining the very basis of legal conflict resolution and encouraging civil conflict. This basic civic responsibility has been deliberately obstructed by UK courts which either declare themselves incompetent to enforce international law or listen wearily to such argument before ruling it irrelevant. Such evasion of the law is a wilful violation of the legal principles held to be binding at Nuremberg, and of the many international commitments made by British governments.
As I have previously pointed out, the International Military Tribunal at Nuremberg observed that, “the very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.” 162 Under the Nuremberg principle of individual responsibility, regardless of a superior’s orders or national law, all persons, military and civilian, whatever their rank or position, are obligated to terminate their commission of, or complicity with, acts connected to the use of a nuclear weapon in violation of humanitarian and other law proscribing international crimes. This is only a statement of the principle’s minimal consequences in the context of nuclear weapons. In the present context of the threat of global catastrophe posed by the Trident system, the principle of individual responsibility supports reasonable, nonviolent acts by citizens and taxpayers of nuclear-armed states, not personally otherwise involved in deployment or use of nuclear weapons, directly to confront and oppose the potential commission of atrocities by use of those weapons. 163 12(17)
This extension of the Nuremberg principle of individual responsibility is consistent with human rights law. Relevant provisions are found in the Universal Declaration of Human Rights. The Universal Declaration is widely accepted as an authoritative interpretation of the human rights clauses of the United Nations Charter, a treaty to which the UK is a party, and additionally evidences customary international law.
Interjection by the Court at Page 62 at the end of Paragraph 12(17).
LORD PROSSER: When you were at the beginning of 12(17) “This extension of the Nuremberg principle”, that is looking back to the principal paragraph that you started with, that would be the Nuremberg principle that people shouldn’t carry on committing or being complicit with the commission of the thing and this is at the bottom, you extend that to people who are not involved in the way of the commission or complicity and you say that as far as they are concerned they can provided it is committed by others, that is why we call it the “extension”, it is not directly concerned with the accountability.
MISS ZELTER: No, not if there’s none of the citizens trying to prevent crimes.
LORD PROSSER: That wasn’t the issue.
At this stage Miss Zelter continued her written statement.
Preambular paragraph three states: “[I]t is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. 164 12(19)
Preambular paragraph eight states: “[E]very individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the people of territories under their jurisdiction.” 165 12(20)
Article 28 states: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” 166 12(21)
Together with other human rights as well as the UN Charter, Article 28 of the Universal Declaration articulates a right to peace. Article 3 sets forth the right to life. The International Court of Justice at paragraph 25 held that the right to life, recognized in Article 6(1) of the International Covenant on Civil and Political Rights, a treaty to which the UK is a party, must be respected in time of war, and that in that context humanitarian and other law governing the conduct of warfare determines whether deprivation of the right to life is arbitrary in violation of Article 6(1). 167 12(22)
The above-mentioned provisions of the Universal Declaration and International Covenant on Civil and Political Rights support a right of nonviolent resistance to threatened violations of the right to life and the right to peace. Harm to civilian populations is inconsistent with the principle that “human rights should be protected by the rule of law” 168 and the right to life. 169 12(23)
Nonviolent prevention of threatened harm vindicates the rule of law while avoiding “recourse, as a last resort, to rebellion against tyranny and oppression.” 170 Nonviolent crime prevention also fulfils the responsibility to strive for the “recognition and observance” of human rights 171 including the right to life and promotes the attainment of a “social and international order in which rights and freedoms set forth in this declaration can be fully realized.” 172 12(24)
In this fourth question put by the Lord Advocate, it may need emphasising once again that “the other person” whose criminal activities we are trying to prevent is her Majesty’s Government. In this regard I would like to refer you to the compelling dissent by Judge Brandeis in Olmstead v. United States where he says, “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, the existence of the government will be imperilled if it fails to observe the laws scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means … would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.” 173 12(25)
Finally, in respect of this question it is also important to note here that if it is a defence then in order to run this defence it is essential that evidence is allowed to show that there was indeed an offence committed by another person. In other words, it gives added weight to the answer to Question 1, that in the context of the Greenock case, it was appropriate and competent that experts were allowed to testify on the factual and objective basis necessary to prove the illegality and criminality of Trident.
My answer to this last question is that depending on the particular circumstances of the case, it may or may not be a defence to a criminal charge that the alleged offence was not criminal but an attempt to prevent or bring to an end the criminal conduct of another or others and that in the particular circumstances of the Greenock acquittal it was certainly a defence.
From any objective global perspective, we three women were acting morally and according to natural justice. From an international legal perspective, our arguments (that we had legal justification for trying to prevent the preparations for the use of nuclear weapons that could not be used in accordance with the intransgressible principles of international law and which would lead to indiscriminate attack and mass destruction) were compelling. Our acquittal showed that at least one Judge ruled our act as also being lawful.
However, we acted within the judicial boundaries of one of the five major nuclear powers – the UK – at a time when the Government’s view was that their nuclear weapons of mass destruction (the Trident system) were necessary for deterrence and were lawful under international law. Such an acquittal could therefore not go unchallenged and the Lord Advocate of the time – Lord Hardie – bowed to political rather than legal pressure and sought a Lord Advocate’s Reference. I say this advisedly in the light of the way the petition is framed and of the questions that have been brought to the High Court.
A Lord Advocate’s Reference is meant to be a procedure whereby points of law that have arisen in a case in relation to an indictable charge can be examined and clarified by the High Court. Serious mistakes in law can thus be rectified and potential problems and conflicts solved.
In my opinion, the major point of law – or legal question – that arose from the Greenock Trial can not be seen within the Lord Advocate’s Petition. The missing question is quite simply ’Is Trident criminal, and if it is what can be done to remove it from Scotland and ensure changes are made to the Government Defence Policy and its implementation to bring it within the law?” 13(5)
In a letter from the present Lord Advocate – the Right Honourable Colin Boyd – in response to a Scottish MSP – Dennis Canavan – who wrote in support of including the question of whether Trident is unlawful in the present proceedings, Colin Boyd states that “it is not appropriate for the Crown to invite the court to answer the question”. 174 This is a classic example of government evasion and abuse of power. The Government is trying to have its cake and to eat it too. It seeks to obtain the Court’s views on questions that do not fairly arise from the Greenock acquittal, while at the same time avoiding the issue that goes to the very heart of the matter. Of course it is appropriate to invite the Court to answer the underlying question. As a matter of grave, urgent, public concern, the Court should initiate an immediate full inquiry into the whole problem or indicate an effective remedy open to the respondents.
It may not be appropriate for the court to answer this question now but at the very least, in the context of the Greenock acquittal, and the context of a growing number of global citizens who are continuing to try to prevent the ongoing criminal activities of the whole Trident system, it is surely appropriate for you, the Court, to clarify whether in fact Trident is unlawful and criminal.
Interjection by the Court at Page 66 at the end of Paragraph 13(6).
LORD PROSSER: That I can understand that it is a question of law, which is something the Court could do, but in your question at 13(4) you don’t ask “Is Trident criminal, you ask also if it is what can be done to remove it from Scotland and ensure changes are made to the Government Defence Policy and its implementation to bring it within the law. Now, I can’t readily see how that can be an appropriate matter for this Court to start suggesting particular steps to be taken by that Government or people because those would be essentially practical questions or political questions I can’t see how that could be a legal question. Similarly your reference to whether you were acting morally one suspects one’s thoughts on whether one is acting morally doesn’t seem to be relevant, it is simply an issue, but to go beyond that may not be appropriate, because I don’t think it is being evasive, in fact I think I’d be surprised if I was called evasive, but I don’t see at the moment how you could embark on some of the lines you are bringing up in this last bit.
At this stage Miss Zelter continued her written statement.
There is another legal issue that has arisen in this trial and which the High Court have not been invited to answer and that is to what extent domestic law can over-ride basic principles of customary humanitarian law. In other words if the domestic law of a country does not allow the prevention of an international crime by its citizens, for whatever narrow technical reasons, does this actually invalidate the crime prevention. I think not. At Nuremberg we saw that in fact narrow domestic German Law did not over-ride international law. Whatever the state of German law if the actions within Germany broke international law then that is what they were tried for and died for and German law could only act in mitigation, if at all.
A much more recent German High Court case reported in the leading German law journal New Juristic Weekly can shed some light on this issue. It concerned two soldiers of the former East-German Volksarmee who did their service at the Berlin wall protecting the East-German border against their own people. …
Interjection by the Court at Page 66 Paragraph 13(8)at the end of the second sentence… at the Berlin Wall protecting the East-German border against their own people”.
LORD PROSSER: “against their own people” could mean against the East Germans, not just Germans, but East Germans.
At this stage Miss Zelter continued her written statement to the end of her statement.
After the fall of the Iron Curtain in 1993 they were charged with homicide for the shooting of a refugee in 1984 who had tried to climb over the wall in East Berlin. They were found guilty at the first instance and it was confirmed at the appeal even though East German law permitted the use of firearms to prevent such a crime and even though they had been ordered by superior officers to prevent such ’crimes’. The High Court referred to the International Covenant on Civil and Political Rights and “found that the defendants must have seen and respected the command of humanity”. It is interesting to note that the High Court referred to the Nuremberg Trials and said “The judge has to examine whether the state has crossed the limits set by the basic values and convictions of all civilised nations.” 175 13(9)
In a letter from the present Lord Advocate, the Right Honourable Colin Boyd – in response to a Scottish MSP, Dennis Canavan – the present Lord Advocate stated that the issues which arise in these Reference Proceedings are “primarily related to the relationship between international law and the criminal law of Scotland”. 176 He also stated that “a wide ranging enquiry into the legality of Trident is not one which can be accommodated in this procedure”. If this is so, which I dispute, then nevertheless I submit that enough evidence came to light in the original Greenock trial which has been reported and commented upon in these reference Proceedings to indict the people responsible for running and maintaining the UK Trident system and this Court should order the immediate and complete disarmament of Trident in the interests of the whole of humanity and in accordance with international law. – otherwise there will continue to be conflict between the very large percentage of people in Scotland, and the vast majority of other countries, that consider the Trident system to be unethical and criminal and the people running and supporting the Trident bases.
It is also inherently unfair that such a life and death issue be left unresolved – and especially unfair to the military and other civilian workers within and outside the nuclear weapons bases who are at present engaged in the deployment of Trident and also in protecting the bases – and I speak here of the submariners and Commanders of the Trident submarines (some of whom are known to be deeply uncomfortable and confused about their role) and of the MOD and Strathclyde Police in particular – all of whom could face criminal proceedings in a future War Crimes Tribunal for their part in enabling the complex system of mass destruction to continue to operate through its outstretched tentacles that cover many of the lochs and hills of Scotland.
I hope that the High Court and Scots Law rise to the challenge.
A legal system can be supported by people if, and only if, it remains firmly grounded on natural justice and morality.
Murder has always been recognised as a wrong and as being unlawful and criminal. Mass murder is probably one of the most heinous wrongs known to mankind.
Crime prevention is natural and as long as it is done nonviolently, safely and accountably forms a recognised right in the vast majority of cultures, societies and nations, many of which have incorporated it directly within their judicial systems.
Although the questions put to the High Court seem to be purely technical, nevertheless they challenge the right of ordinary citizens to try to put very great wrongs right. For this right to be undermined, spells disaster for our society and will lead to a protracted conflict of interests between the State and ordinary people. People will no longer be able to remain responsible caring human beings as well as Scots-law-abiding citizens. They will have to choose between the two.
It is clear that responsible, caring global citizens will choose life and people’s disarmament over a legal system devoid of morality, humanity and natural justice. The nuclear crime prevention will continue whatever the outcome of the LAR but if the Court is wise and courageous it will also grapple with the underlying problems arising out of the Greenock Trial – that of the vital question of the criminality of Trident and how to remove it from Scotland.
I would like to leave you with one last quote and urge the Court to read the whole of the Dissenting Opinion of judge Weeramantry from whom it comes. On page 29 of his opinion he says,”One wonders whether in the light of common sense, it can ever be doubted that to exterminate vast numbers of the enemy population, to poison their atmosphere, to induce in them cancers, keloids and leukemias, to cause congenital defects and mental retardation in large numbers of unborn children, to devastate their territory and render their food supply unfit for human consumption – whether such acts as these can conceivably be compatible with ’elementary considerations of humanity’. Unless one can in all conscience answer such questions in the affirmative, the argument is at an end as to whether nuclear weapons violate humanitarian law, and therefore violate international law”. 177 Thank-you for your attention.
WEDNESDAY, 11th OCTOBER, 2000
MR. MOYNIHAN: I’m obliged your Lordships. It may assist your Lordships to know by reference to the individual questions which questions I propose to use to address your Lordships.
As far as Question No.1 is concerned it relates to proof of the Customary International Law. I have already indicated to your Lordships that for my part and for my interest I do not need to establish that for your Lordships but look to Professor Boyle for proof of Customary International Law and I will confine my observations to one reference to your Lordships. Beyond that I am grateful to Miss Zelter for having done considerable research that surpassed my abilities in finding Commonwealth examples and such evidence having been received by the Court. I’ll come back to proof in relation to Number 1 in a moment. Question 2 is obviously the question I will require to devote my submissions to. Question No.3 my Lords is unnecessary at least from my perspective for me to address that question because the submissions I will make to your Lordships are on the basis that Trident is unlawful, and accordingly I will not be making a submission to your Lordships based on a subjective but unfounded belief.
LORD PROSSER: When you say Trident is unlawful I’m not sure an object can be unlawful. Does that mean possession or…?
MR. MOYNIHAN: I’ll come back on to that. Thereafter it is my submission that it is unlawful and I’ll come back to explain why I am not relying on a subjective belief and that is partly necessary because for me to argue the proposition in No.3 as it stands would require me to argue on Clark v. Syme that your Lordships were addressed upon. To argue Question No.3 as it stands would require me to argue that Clark v. Syme 1957 Justiciary Cases Page 1 was wrongly decided and that is as I perceive it simply unnecessary to the consideration of the issue in this case from my perspective, so I will not argue the Proposition No.3 for that reason.
As far as Proposition No.4 is concerned without intending to be disrespectful Proposition No.4 asks if in general a defence can be answered no without any prejudice to the substantive issue in this case because the Respondents never argued that there was a general defence, they argued a defence based on the specific circumstances of this case. Again with respect it appears to me that Proposition 4 doesn’t need any detailed consideration.
So far as Question No.1 is concerned that is the manner of proof of International law my learned friend Mr. Di Rollo in the course of his submissions drew your Lordships’ attention to the fact that in my Note of Argument I had cited to your Lordships the case of MacMillan against McConnell 1917 Justiciary cases page 43 Authority A in the bundle which I have just handed up. It’s the only authority I need to refer your Lordship to for today. I only do so for the quaint way in which it was put by the Lord Justice Clerk showing the statutory provisions do not require proof. If I can ask your Lordships to turn to Page 47 of the Opinion, the last full paragraph on Page 47 which begins “In my opinion the said Order became part of the law of the land from the date when it came into force as provided by Article Page 12 thereof. But no proof of our law is necessary or competent in our own Courts of law. That is always and only a question for the Court. The law, indeed, is presumed to be known to everyone. A statute or order having the force of statute is not produced to prove what the law is, but merely to refresh the memory of the Judge or lieges”. I would not presume to speak for your Lordships if that is the case but you will see it certainly was not to the fore.
LORD PROSSER: It refreshes my memory on many things but not of the law.
MR. MOYNIHAN: It is in a sense whimsical in making that observation and yet profound.
LORD PROSSER: This was the Lord Justice Clerk.
MR. MOYNIHAN: That is also from memory and having heard my learned friend Mr. Di Rollo say that normally it is based on a picture which in all honesty is more or less true depending on the circumstances and was not adopting what Miss Zelter said or Lord Justice Clerk Scott Dickson. I am not getting a general pitch about the admission of evidence but what I do support is the alternatives proposition for Miss Zelter on the defence that she mentioned and the distinction between competency and relevancy unique to Customary International Law because it envelopes the proof of custom. In other words the practice of statutes and there may be room for the admission of such evidence, there may be room, so it might be competent and whether such evidence is relevant can be regarded as the question – Firstly is it necessary? In other words is it a matter that is clear in textbook or by reference to authors or disputed. Is it necessary, and indeed is the material that is coming from the witness relevant?
My Lords, I don’t wish to press the argument to your Lordships because having read the content of Professor Boyle’s evidence so far as it relates to matters of law these are matters that can be appropriately aired for your Lordships as legal submissions on the primary document, even on that point stepping back from the witnesses’ observations, and even on that point to acknowledge that line of argument which is derived from Professor Boyle’s evidence, that isn’t one that I would I believe have arrived at independently of him. So I acknowledge my Lords from my perspective there was in fact a practical value in the evidence in the case. And that concerns a matter for your Lordships whether it was a permissible approach in this case, so I leave it there.
LORD PROSSER: There is no proof necessary which is slightly different from the question of whether testimony might be useful. I follow what he says, that it doesn’t require to be proved, and so far as the proof is concerned it is proof rather than the question of whether the testimony might be useful. That is all consistent with saying it is only a question for the Court which is what he goes on to say.
MR. MOYNIHAN: In my Note, in my Note of Argument I have an example where one might touch upon matters of law with an expert to set the scene and the example I gave was in a fraud trial where one might in a sense lead the expert accountant to explain for example the VAT regulations to the Jury, and then having set the scene one would then explain through his evidence what the features of a legitimate Value Added Tax arrangement might be and accordingly what the features of an illegitimate scheme where in this trial from the Prosecution or if the Defence did it in the reverse. I give as an example…
LORD PENROSE: Is that not because the accountant is there?
MR. MOYNIHAN: Even if I accept that what I would with respect suggest to my Lords that the admissible question to purely be the accountant explaining what he understood the VAT regulations to mean, and one could do it on the basis that ultimately it is of course for the Judge to direct the Jury what the true legal problem is, and therefore that may only be shown on other circumstances. Let us assume for the sake of argument that the essential legal propositions are these, let’s assume that and just look at the facts to see, in other words one would address the Jury by telling them the three or four key features and after the first key feature in your evidence you might now move on to feature 2, feature 3, in other words signposts leading one through the evidence and it so happens on reaching Professor Boyle’s evidence, if one takes that submission on the matter of law for your Lordships the appropriate interpretation of the International Court of Justice Opinion Professor Boyle’s factual evidence can then slot into place. In dealing with the illegality of Trident my Lords will hear submissions from me that it depends on the warhead potential capacity. On Trident my Lords will hear from me the submission on the International Court of Justice when reserving its position at the end of the judgment it had in mind a much smaller weapon than Trident. If the legal proposition is correct that the International Court of Justice had in mind a much smaller weapon then Professor Boyle’s factual evidence about the nature of Trident and its one hundred kiloton capacity makes sense so that there is in my respectful submission an intermediate position that evidence or testimony as to matters of law can be given by a witness so long as we are aware that it is not passing to the Jury the question of determination of matters of law which is for the Trial Judge.
LORD PROSSER: Of course given it did happen anyone is perfectly entitled to use what is actually there as a basis for submission.
MR. MOYNIHAN: There is one point I wish to perhaps mark up. The learned Sheriff said that one of her reasons for admitting this evidence was a lack of confidence in the ability of Counsel to make submissions in relation to these matters. I would not seek to commend that as a reason.
LORD PENROSE: So is the general view that it is of necessity going to be admitted at the point before the Court is directed, how do you determine when it is appropriate and when it is not?
MR. MOYNIHAN: I am not intending it be shown by this submission, I am speaking specifically of customary international law and the learned Sheriff conceded she did not know of this and she would be in the vast majority of people in that position, and it may be that is a matter on which a fairly immediate answer could be given by the Presiding Judge to say that this is something on which I would benefit from some assistance from an expert.
LORD PROSSER: So you’re talking about the lack of confidence in Counsel, it is also a confidence in her own knowledge, and it seems to me that the doubtful competency line referred to in contemporary literature, by leaving people until one tailors one’s reactions to one’s own Knowledge, the Knowledge which is appearing before one then in my understanding if on a matter that wasn’t an everyday experience I think I would understand if a judge at any level felt that he and Counsel or solicitors could do with the framework and assistance of written material of that kind and perhaps oral testimony of that kind but I am puzzled at the moment at the end of the day on the question for oneself. I can’t see why one would feel restricted provided that one remembers all the time that it is a matter for oneself as the Judge of law to decide what it is.
MR. MOYNIHAN: There is another point that Miss Zelter mentioned and that is commending to your Lordship’s to look briefly at some stage at the Pinochet case in England and I think that is now well familiar to us. My Lords, if we look at the list of Counsel in the case your Lordships will see Professor Brownlie was one of the Counsel and also Professor Greenwood. I don’t know him personally but he did participate in the International Courts of Justice cases we are considering. In England because it is their jurisdiction there was available as we know experts in some areas of law but these were based on our jurisdiction. There may be less need in England for the Court to be assisting as an expert witness and we should in my respectful submission be conscious that the learned Sheriff did not demur from this. I am conscious of our own limitations and if we stay within our own limitations then no harm is done by hearing evidence on this cardinal point providing everyone is conscious of the appropriate limitations between the function of the judge and the function of the jury.
LORD PROSSER: If one admitted evidence of that kind in a jury trial when it came to the Charge to the Jury the Judge would direct them that unlike other witnesses this witness’s testimony was not a matter for them to consider.
MR. MOYNIHAN: Yes, there could even be, I don’t know.
LORD PROSSER: It could even be taken outwith the presence of the Jury.
MR. MOYNIHAN: Yes, that is what I was going to suggest that it could be taken outwith the presence of the jury. It so happens that with Mr. Professor Boyle’s evidence and that I will come to, properly understood what he was saying was that this is what the International Court of Justice said about nuclear weapons in general, and by addressing this what I say about Trident in particular was that it might have been difficult if not impossible to break up his evidence into what was if you like law and what was fact and one has an example available of the arrangement of a trial within a trial, and that is a practical consideration for the trial judge. In my respectful submission the answer would be confining it only to the Customary International Law the answer would be that it is competent to admit such evidence. Whether it is necessary and appropriate is within the discretion of the trial judge. Again as I have said for the cardinal rule for the admission of such evidence it does not transfer the responsibility for matters of law from the judge to the jury.
LORD PENROSE: Mr. Moynihan, one might find it very difficult to see how this fits in with the Scottish Rules of Criminal Procedure such as witness lists for the Crown must be in on time and the lack of any obligation on the Defence to give prior notice of a line of defence, how the Court would handle that practically. You might say that is up to the Scottish courts to judge.
MR. MOYNIHAN: One is accustomed as an Advocate Depute to meeting all sorts of people on the Defence list, classically it would be three days prior to the commencement of the trial, that the Court observed it and perhaps Counsel have been faced with a Psychiatrist for example at short notice with a late special defence and that is dealt with in our system by the Crown in extremis seeking an adjournment of the trial. In this case I am bound to accept that the Procurator Fiscal found himself in an impossible position given the nature of the defence and would have been so whether that defence was advanced through the mouth of Processor Boyle as a witness or through the mouths of Counsel as a submission. There is no requirement in our procedure to give notice of the line of defence, it is required to give notice of a limited category of special defence but not the line of defence. Again it comes back to the judge, the broad discretion vested in the trial judge as to what is necessary and appropriate in the circumstances.
I don’t wish to take up an undue amount of time because it so happens in this case that as far as the law is concerned acknowledging that I derived this from the evidence of Professor Boyle in reading from his evidence and having got ideas from him relating to the Judgments of the International Court itself.
Coming to the Question No.2 I intend to break my submissions down into three categories. The first is the illegality of International Law, the second is the link between the illegality of the International Law and the Municipal Law, and the third having established that link, is there proper limitations of the defence of necessity. It is these three chapters that I will break Question 2 down into. Again they do meet the Crown’s argument in this case. My Lords as far as the hypothesis upon which I will proceed I adhere to the proposition which your Lordship’s have already seen in Paragraph 8 of my Note of Argument. However, a question is framed it is my respectful submission, it is my respectful submission that the constituent parts of the hypothesis on which one approaches this case is summarised on Paragraph 8. My Lords, Mr. Di Rollo began reading the learned Sheriff’s extemporaneous judgment at Page 147 of the transcript and I will not take your Lordships’ time up this afternoon but I would invite your Lordships to draw back to Page 143 from which a partial statement is given in Paragraph 1D of the Lord Advocate’s reference and if your Lordships read from Page 143 onwards it merits being looked at and perhaps I would also invite your Lordships to have the Lord Advocate’s reference at Page 2, Paragraph C and I will highlight the appropriate passage.
LORD PROSSER: I think you touched on this one earlier.
MR. MOYNIHAN: My Lord in the Chair is familiar with it. I’ll begin reading at Page 143 Letter C which is where the quotation begins in Paragraph D of the Lord Advocate’s reference. The first few points are missing from the quotation. My Lords the Sheriff says “The first being that the three Accused considered that Trident was being used illegally based on an understanding of what was international law and on advice given to them. And if they were right that the use and threat of nuclear weapons is illegal and as I understand from Miss Zelter they do not say that possession of weapons, such weapons is illegal but the use and threat is illegal. Then again they had a right particularly given the enormity or the risks of nuclear weapons to try and do something to stop that illegality.” From Page 2 of the reference is the clause beginning at 143 Letter D with the words “and as I understand from Miss Zelter they do not say that possession of weapons, such weapons is illegal but the use and threat is illegal”. Then again it is clear from what the learned Sheriff correctly summarised the defence that the defence focused on Trident not nuclear weapons in general. Secondly the threat was use not possession, and thirdly the defence case was that the threat or use is illegal, and not merely a matter of personal objection.
LORD PENROSE: Or personal belief. There is a slight smudge based on understanding, etc., and the position was it was actually illegal not merely that they understood it was illegal. There is the underlying problem in that was the Defence assertion or characterisation of the nuclear weapons and submarines, and there was one that characterisation of them the Crown characterisation that it was merely held or possessed.
MR. MOYNIHAN: Can I explain to your Lordships why it is necessary to draw back from Page 143 specifically, there is a specific mention, in Page 145, just above letter B and if I read from Page 145 just above letter B “Unfortunately because they had not been addressed on the law and they were simply dealing with what appeared to be an honest belief of the Accused they did not go on to consider the law except so far as it related to possession, but I think in many cases, in many ways the case of Helen John can be distinguished in this case not only do we have the defence of International Law and necessity but the whole defence hinges, if I can say it this way, on the use made of nuclear weapons now and the perceived threat or threats made by the nuclear states, this is the whole question”. What that means in answer to my Lords is that the defence did not challenge the correctness of the decision of John v. Donnelly by this Court and they sought to distinguish that case based on a distinction between possession on the one hand and the threat or use on the other hand, and I accept that in answer to my Lord Penrose that whether that distinction has been made the issue is the issue in the case, that is the issue.
LORD PROSSER: The issue of fact.
MR. MOYNIHAN: And issue of fact and law.
LORD PROSSER: Without the facts the law cannot be…
MR. MOYNIHAN: They sought to lead evidence on certain matters of fact and I will make a submission which as with the Sheriff and by default and contradiction from the Crown there is evidence on which the Sheriff could conclude that the United Kingdom had indeed threatened the use of nuclear weapons and that threat as understood in International Law, that I accept is a statement of fact, namely, is there evidence of some conduct in law and does that conduct amount to a threat.
LORD PROSSER: I think there is a feeling increasingly that while it is very easy if one has a sharp scalpel, it is very easy to criticise this question as being wrongly formulated or too wide, but speaking as one who has to look at a case like this it seems, there seems to be a wide question within which one can draw the kind of distinction that you are drawing in the simple possession case of John where it was a kind of starting point and something within which one was working. In this trial although restricted to the idea one could try, one would try one way of putting the question where there was some breadth.
MR. MOYNIHAN: One of the duties in the International Courts, I am smirking but one of the duties of the International Law because that Court addressed too general a question it has given this Court and indeed the learned Sheriff an impossible task. I don’t demur from what your Lordship has said on a variety of questions.
LORD PROSSER: It was clearly given too narrow a question and it should have been the wider question and then see what would then arise.
MR. MOYNIHAN: In view, I’m not challenging your Lordships as to the procedural solution to this case on a wide interpretation of this quotation that is indeed so but I’m simply putting the case forward and the initial interpretation of the case was narrow and so far as your Lordships have taken from Miss Zelter’s correspondence bundle, and the Lord Advocate’s correspondence involving the Lord Advocate, it indicated apparently that the Crown’s intention was indeed to adopt a narrow approach on this question. Then a problem arises, a problem arises and I am plainly aware of your Lordships’ willingness to introduce the essential and important issue. Pausing there, the final point I made on the quote in the Note of Argument directly from the learned Sheriff, the final point, it is important to understand this defence is that the three Respondents argued not just a right to object to Trident or to take the appropriate action but to take appropriate action at the time of great international unrest. It is at a particular stage in international affairs. Your Lordships will obviously have to consider that in the context of the immediacy of any danger at a time of great international unrest and what the learned Sheriff said…
LORD PROSSER: It is actually Iraq and Kosovo.
MR. MOYNIHAN: She actually had a passage from Miss Johnston in mind as to what was happening on the 8th of June at an International Disarmament Conference, on the 9th of June.
LORD PENROSE: It could hardly have been in mind at the time the offences were planned. One may have to be careful in choosing a coincidence.
MR. MOYNIHAN: What was happening, there is a particular part of the evidence from Miss Johnston as to what was happening on the 8th of June on the international scene. Miss Zelter has mentioned in her statement about, speaking about since February of 1998 and I am not arguing with that statement, as it emerged that it was midnight on the 8th and 9th of June.
LORD PENROSE: That is the evidence of Miss Johnston.
MR. MOYNIHAN: When she was being asked about this and the transcript relating to Miss Johnston appears at Page 86 to 87 I believe, the evidence was given on the 18th of October and the question from my learned friend Mr. Mayer at Page 86 letter A “Please tell me if any of the high-level diplomatic community which we have mentioned were protesting to you about the threat or use of British nuclear weapons on 8 June 1999? — it was a smallish seminar, attended by… us to Geneva for Britain, France, China, by the US State Department heading for Non-Proliferation and their head of the Department for Arms Control Foreign Ministry, Russia.
“Were any of them protesting? — I’m just trying to think exactly who was there. There was a general air of crisis at the meeting that the non-proliferation machine was falling apart.
A general air of crisis? — there were accusations and counter-defences from a number of people who, representatives there which included South Africa, Canada, Australia, Germany, Japan – the Chilean Ambassador would have been present – it was just after the meeting of the parties to the Non-Proliferation Treaty. There were a lot of accusations from them towards the nuclear weapons states that they had a cavalier attitude towards their obligations to negotiate disarmament.
I see for the purposes of the notes you are pointing to paragraph F of Section 105 of the ICJ Opinion? —” that is the paragraph recommending good faith in the renegotiation. Yes. “Yes, that they were undermining non-proliferation at a very dangerous time internationally, particularly with the India/Pakistan tests of the previous year and in basically coming close to declaring a nuclear doctrine at home. There was a terrible deterioration of issues between the United States and China and between the United States and Russia chiefly over the bombing of Yugoslavia.
Is this on 8th June? — this was all part of this crisis and there was a deterioration in relations and counter-accusations and anxiety that for example…” and the questioning is then stopped.
LORD KIRKWOOD: What was the seminar?
MR. MOYNIHAN: It was organised by the University of Southhampton.
LORD KIRKWOOD: Southhampton and that is British, it just occurs to me that there is also certainly one in…
MR. MOYNIHAN: It is the USA. I will I think from my point make this observation in relation to Question 2 on what is available to me and to your Lordships of this trial subject to one of the documents that Miss Zelter confirmed to my Lords was available at the trial and without going into Miss Zelter’s material because I don’t want to invite new evidence.
LORD KIRKWOOD: When you started at Page 86 what was the something, it was university something.
MR. MOYNIHAN: It was a conference attended by the University, it seems to have had more than university students at it. In answering directly to my Lord Penrose that was the evidence relating to the 8th of June and as I understand it there is other evidence I will come to but that was the evidence on which the learned Sheriff relied on a particular period of international crisis and the evidence was not confined to the 8th of June because as the witness said at 87D to E the tension between Russia and the United States relating to the Kosovo situation had of course been running for some time, and my submission on the facts will be that looking to the documents, the excerpt from Hansard that Miss Zelter has confirmed to your Lordships was available at the trial and this is in the Production No.29, that in relation to the Kosovo crisis the Secretary of State for Foreign Affairs in the UK had made a veiled threat to use nuclear weapons in connection with the conflict, but we’ll come to that in due course.
LORD PROSSER: There was a fair amount of discussion around that time, you just used the word “conflict” but there was a good deal of discussion that we are at war although it was accepted there was something called armed conflict that distinction isn’t a matter you have presented. Sometimes this country seems to be involved in what might be called a war but the Government says it isn’t one so we don’t need to worry about that.
MR. MOYNIHAN: We do not directly because what we will come to is that if nuclear weapons, any nuclear weapon is permitted for use it is only in circumstances of war, and accordingly at peace time all restrictions of necessity apply. There was no reason on a time basis why one would wish to fire any weapon let alone…
LORD PROSSER: Could it not create problems in the drawback.
MR. MOYNIHAN: What we as lawyers must grapple with and what Miss Zelter is concerned about is the politician’s jargon which fails to address what they know to be the legal test. People might believe that we are at war and politicians might view it as something else.
LORD PROSSER: We don’t need to worry about that distinction. It may be an armed conflict.
MR. MOYNIHAN: And the second point, Miss Zelter has referred to the Defence Secretary, the then Mr. Robertson, I can focus on it myself, I seem to remember watching him being interviewed on TV at the time and I didn’t take notice, I don’t think I noticed any different course but I seem to recollect him being asked the familiar question as a politician – are your subs armed with nuclear missiles and he refused to answer either yes or no. The evidence will show, the point I am making is that the evidence will show that the movement of the subs gives a signal to people of a preparedness to use nuclear weapons, it is the signal of preparedness to use nuclear weapons that I would submit is the threat by International Law and we will see mention in one of the judgments in the International Court of Justice Judge Schwebel, he regarded it as a threat, albeit a justified threat was his view and he regarded that threat as a bluff by the Americans to use nuclear weapons if Sadam Hussein used chemical weapons in Iraq, in other words the American diplomats said to the Iraqis if you use chemical weapons there will be a massive response.
LORD PROSSER: Proportionate response, he didn’t specify what it will be.
MR. MOYNIHAN: Our Foreign Secretary had legal advice as to what was the right legal jargon and he said a proportionate response and the American diplomat said massive. Judge Schwebel, the Vice-President Judge in US said there would not be any deployment of nuclear weapons. Judge Schwebel told us the Iraqis took the hint from what the diplomats said and apparently did not use the chemical weapons because of the threat or the perceived threat of nuclear retaliation.
LORD PROSSER: I can understand a bluff is still a threat and the difference between the two might be that in the case of a bluff you are not actually intending to follow it up but they are still both equally threatening.
MR. MOYNIHAN: A signal, whether the signal be intended as genuine or intended as a bluff, the signal is the preparedness to use, and the Judge is dissenting on a more liberal view of allowing nuclear weapons but he still regarded it as a threat.
LORD PROSSER: That raises the question of whether everything that is in preparedness will be a threat. Can you comment on that?
MR. MOYNIHAN: I can take the reason I mentioned just now that we are really looking at the what the Foreign Secretary said in the House of Commons, if you accept the equivalent threats used by the Americans in the International Court of Justice and what was regarded by Judge Schwebel as a threat in the international sense of that term, a threat to use.
LORD PROSSER: We’ll come to the whole question of what is said by a judge or the judges of that Court constituting International law.
MR. MOYNIHAN: Dealing with that, I am going to come to the matter of the International Court of Justice and in my respectful submission that is one of the sources of International law and the judicial position. Your Lordships asked yesterday what the status and position of the International Court of Justice is and my understanding from an advisor’s opinion is literally that it is advice given by the Court to the organisation of the United Nations that requested the advice. Nonetheless since this Court particularly as the Crown is saying you should not hear evidence but should receive submissions that is the highest Court which declares the content of Customary International Law, and accordingly the authoritative source from which your Lordships could gain guidance as to the content of the applicable International Law as to judicial decision, and its application to fact. I know we have already touched upon Pinochet in relation to a source of International Law which is of necessity I submit the highest source of judicial decision is the world court itself. It so happens if you look to the judgment that the United Kingdom accepted essential principles of International Law and it was merely an argument as to its application to the facts I might be commending an International Court of Justice Opinion to your Lordships as persuasive authority of the content of the relevant International Law. I will be commending the judgment to your Lordship as persuasive authority of the content of the applicable principles of International Law. I have given to your Lordships a copy of the decision of the International Court of Justice. Can I explain to your Lordships what I have given. It duplicates in some respects what your Lordships already have and I just want to flag up what it duplicates. It begins with a copy of the Judgment of the Court and your Lordships already have that as Crown document R and your Lordships may see the information that goes with it. If your Lordships turn to the copy I have just handed up.
LORD PROSSER: That runs from Paragraph 105 at Page 265/6.
MR. MOYNIHAN: And if your Lordships see at 267 at the end it tells us in the last three paragraphs at the end that all fourteen of the judges delivered individual opinions. The book is now buried under the papers.
LORD PROSSER: On that point the declaration there had one dissenting opinion.
MR. MOYNIHAN: Each of the proposed propositions tell us whether it was unanimous or by a majority and names the judges. Can I take your Lordship to that Production, I have divided it in half and that is the totality of what was said, it is half in French and English.
LORD PROSSER: This is the English version.
MR. MOYNIHAN: I have given one in French which is meaningless to me, and the judgments which your Lordships should be reading the declaration of the President Judge Bedjaoui and there is course a passage which is slightly difficult to understand so I am putting my own interpretation upon it and I have produced at the back of this copy the original in French.
LORD PROSSER: Judge Bedjaoui.
MR. MOYNIHAN: This is as far as the Opinion dissents and it tells us whether the original was in French so you see there is a cross-check with the French passage and I take it your Lordships already have what we know the material to be.
LORD PROSSER: We already had this one in French.
MR. MOYNIHAN: It was in French. It is difficult to understand. There is a passage and I have found it difficult to understand but that’s it, Paragraph 11 Page 270 and there is something about the way the Judge says a particular proposition has to be answered in the negative and we come to the explanation for your Lordships as far as Judge Bedjaoui is concerned and Miss Zelter has in her bundle his Opinion as No.15 and that at least as far as I have it in her bundle is in French only and the only part which is English is Judge Schwebel’s which is No.28 of Miss Zelter’s bundle. It so happens in my copy I have annotated it doesn’t include Judge Schwebel but Judge Weeramantry is No.58, and for two reasons I have not copied that, so that is half of this book and secondly I’m not intending to refer to that and your Lordship already has it in English. I have reproduced for your Lordships Judge Ranjeva which is in Miss Zelter’s documents, Document No.73 in French and she also has produced Judge Shahabuddeen as No.86. I have not reproduced that. So 86, and in addition I have produced at the back Judge Higgins for a particular reason that I will come to directly. What your Lordships have before them just now is the package that I intend to refer to in my submissions so it is a self-contained package and I draw your Lordship’s attention to the fact that my learned friend Mr. Di Rollo read from Crown Production R and your Lordships may have annotations there. The argument in this case will turn as I trust we’ll see on what the Court calls the dispositif E and that is at Page 266 in the bundle. If your Lordships look at the top left the numbers run to 266 and E is “by seven votes to seven, by the President’s casting vote” so that brings us back to the fact that fourteen would have felt it necessary to issue Opinions and “It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of International Law applicable in armed conflict, and in particular the principles and rules of humanitarian law; however, in view of the current state of International Law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake”, and if we look at the list the President who has a casting vote made the difference, and that is President Bedjaoui, and the only information we have available is the Opinion of Judge Ranjeva from the majority and your Lordships will see Judge Schwebel and Judges Shahabuddeen and Higgins were in the minority. If I can ask you to look at Judge Higgins I have cited here that one passage from those who have dissented and if your Lordships look to Page 584 Paragraph 7 of her Opinion. “I have not been able to vote for these findings for several reasons. It is an essential requirement of the judicial process that a court should show the steps by which it reaches its conclusions. I believe the Court has not done so in respect of the first part of paragraph 2E. The findings in a judicial dispositif should be clear. I believe Paragraph 2E is unclear in its meaning (and one may suspect that this lack of clarity is perhaps regarded as a virtue). I greatly regret the non liquet offered in the second part of Paragraph 2E. And I believe that in that second sentence the Court is declining to answer a question that was in fact never put to it”.
Now, that paragraph is from a dissenter and is supporting the basis on which the Defence always have to be conscious of the generality of the language used by the International Law, not only conscious of its generality but one should strive to discern the reasons why such a general answer was given, and having discussed those reasons one then can apply them to the specific issues before this Court, and one generality, the International Court spoke of nuclear weapons in general, it did not concern itself with the size of the warhead.
LORD PROSSER: I follow that but if one is looking at this as a source of Customary International Law on that approach I could really understand it if it was said that the Customary International Law is uncertain as to its edges because the whole thing about Customary International Law as I understand it is something that is generally accepted and I’m not sure how you can be clear as to how widely it extended, because there is uncertainty as to whether there is a rule in International Law and I am just assuming that in reaching this point there is no restriction that one can see apart from the explanation which they mention and which was generally to have been deleted. They’re not saying that, they are saying something rather broad which doesn’t sound like a rule so that it can say it was generally shown in a high percentage of situations to be unlawful, but it then turns to the specific matter of extreme self-defence and so they don’t tell us about that. So what about other situations, are they directed to other situations or is that something they don’t speak about?
MR. MOYNIHAN: My submission will be this, that apart from the possibility, apart from the possibility of a small scale nuclear weapon used in circumstances where the survival of the State is at issue, apart from that situation nuclear weapons are unlawful by International Law.
LORD PROSSER: In other words apart from the word “generally” being there you say that is how to consider that.
LORD PENROSE: It is Paragraph 12 where Judge Higgins has dealt with the illegality and not based on the rationale.
MR. MOYNIHAN: Yes, that is her opinion and as your Lordships can see what we have is a vote of 7/7 and a casting vote and there are many different views and I’ll come back to explain for your Lordships the point I want to make but the one point that the Chair made and the point that was being drilled home was that apart from that one situation nuclear weapons are illegal and as far as that explanation is concerned the International Court do not say that that situation is lawful, they did not say that it is lawful, the Court said we do not know.
LORD PROSSER: I know that but I remain very puzzled by the formulation because if that was the only thing that stood in the way of a universal statement that it was unlawful that is what I would have thought they would say first and then go on to say afterwards it is unlawful. I’m not sure from the word “generally” through to the word “however”, I’m not really sure what they are telling us about or if they are saying that it is unlawful unless it falls into that “maybe” category.
MR. MOYNIHAN: If I can mention for your Lordships the reason why I smirked earlier on today. If I can ask you to look at Page 304 of this bundle and this is Judge Ranjeva, Judge Ranjeva will come to answer what the word “general” means and if we look at his Opinion, and I would ask you to look at Page 304 he says “In conclusion, if the two clauses of Paragraph 2E had appeared as separate paragraphs, I would have voted without hesitation in favour of the first clause and, if the provisions of the Statute and the Rules of the Court so allowed, I would have abstained on the second clause. The joinder of these two propositions caused me to vote in all conscience in favour of the whole, for the essence of the law is safe and the prohibitions of nuclear weapons is a question of the responsibility of all and everyone, the Court having made its modest contribution by questioning each subject and actor of international life on the basis of the law. I hope that no court will ever have to rule on the basis of the second clause of Paragraph 2E”.
Your Lordship in succession to the learned Sheriff is being asked to rule upon the proper meaning of Clause 2E of Paragraph E.
LORD PROSSER: We can think of that but at the moment I don’t understand how one could vote in view of his comments because it is not a statement of International Law to say that something is usually unlawful, the necessary word is “generally” as it stands at the moment it is completely vague. It has deleted the word “generally”.
MR. MOYNIHAN: If you understand the “generally” and the reason for it in my submission relates to the paragraph at the top of Page 303. It relates to the possibility of what is called a “clean nuclear weapon”, but it generally won’t exclude that possibility.
LORD PROSSER: If you were to sever the two, but I don’t understand that is generally what is sought or that is what they did.
Adjourned until tomorrow morning
50. [Note. The New Zealand Government in its Instrument of Ratification made the following interpretative declaration:- “The Government of New Zealand notes that the majority of the war crimes specified in article 8 of the Rome Statute … make no reference to the type of the weapons employed to commit the particular crime. The Government of New Zealand recalls that the fundamental principle that underpins international humanitarian law is to mitigate and circumscribe the cruelty of war for humanitarian reasons and that, rather than being limited to weaponry of an earlier time, this branch of law has evolved, and continues to evolve, to meet contemporary circumstances. Accordingly it is the view of the Government of New Zealand that it would be inconsistent with principles of international law to purport to limit the scope of article 8, in particular article 8(2)(b), to events that involve conventional weapons only”]. 51. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 8. [Ref.4]. 52. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 28. [Ref.4]. 53. Ministry of Defence, UK. Crown, 1981. The Law of Armed Conflict, p 38, Section 10, Service Discipline: 1. [Ref.39]. 54. A-Bomb: A City tells its Story, Yoshiteru Kosakai, 1972, p.8,47,48 (30a) and Hibakusha, Nihon Hidankyo, 1982, p.9 (30b). [Ref.30]. 55. The Outline of Atomic Bomb Damage in Hiroshima, Hiroshima Peace Memorial Museum, June 1999, p.20 & 25. [Ref.30(c)]. 56. Ryuichi Shimoda et al vs. The State, Tokyo, December 1963. [Ref.31]. 57. Nicholas Lyell’s November 15th 1995 Oral Statement, CR 95/34, p.46 & 47. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, p.47. [Ref.18]. 58. Greenock Production – 5 – “Trident, Britain’s Weapon of Mass Destruction”, John Ainslie, March 1999, p.1. [Ref.32]. 59. The Use of Trident in War, Professor Paul Rogers, September 2000. [Ref.75]. 60. Map of damage to Edinburgh with 100kt Trident warhead – John Ainslie. [Ref. 77]. 61. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 25 (3c). [Ref.4]. 62. Charter of International Military Tribunal at Nuremberg, Articles 6. [Ref.33]. 63. Non Governmental Statement to be Submitted to the International Court of Justice, May 3 1995, Japan Center of World Court Project, p.25. [Ref.34]. 64. Dissenting Opinion of Vice-President Judge Schwebel, p.1, 12. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref. 28]. 65. Thinking about Nuclear Weapons, Michael Quinlan, MoD, RUSI Whitehall Paper Series 1997, p.14-15. [Ref.78]. 66. Britain Ponders Single Warhead Option, International Defence Review (September, 1994), David Miller, p.50. [Ref.82]. 67. Letter of 28/9/00 from Stephen Willmer, Proliferation and Arms Control Secretariat of the Ministry of Defence, to Angie Zelter. [Ref.85]. 68. “The Next Chevaline Scandal?” Alan Simpson MP and CND, August 11th 1999, p.1 & 17. [Ref.35]. 69. UNGA 53, First Committee, UK Explanation of Vote, L.48/Rev 1: Towards a Nuclear-Weapon-Free World: The Need for a New Agenda, 13 November, 1998. [Ref.36]. 70. UN Resolution A/RES/54/54Q on ’Follow-Up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’. [Ref.9]. 71. Final Document Issued By 2000 NPT Review Conference, May 20th 2000, p.19. [Ref.37]. 72. Letter to Angie Zelter from Hazel Finch, Ministry of Defence, October 23rd 1997. [Ref.38]. 73. Trial of Wilhelm List and Others, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), vol 8, p 67. [Ref.87]. 74. Digest of Law and Cases, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), Vol 15, p 175. [Ref.88]. 75. Trial of German High Command, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), Vol 12, p 123. [Ref.89]. 76. Trial of German High Command, Law Reports of Trials of War Criminals, UN War Crimes Commission (HMSO, London, 1949), Vol 12, p.124. [Ref.89]. 77. Krupp Trial, Law Reports of Trials of War Criminals, UN War Crimes Commision (HMSO, London 1949), Vol 10, p 138 and 140. [Ref.90]. 78. Indictment for Conspiracy and Incitement, George Delf, 1980’s and The Pax Legalis Papers – Nuclear Conspiracy and the Law, Robert Manson, Jon Carpenter and INLAP, 1995. [Ref.40]. 79. House of Commons Written Questions, 13 December 1999: Column 40W. [Ref.41]. 80. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.23. [Ref.8]. 81. Lord Advocate’s Reference Petition of the Rt. Honourable the Lord Hardie, Justiciary Office Lodged on 21 January 2000. [Ref.11]. 82. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Friday 1st October 1999. [Ref.7]. 83. Ibid. p 52-58, 63, 82. 84. Ibid. p56. 85. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Monday 18th October 1999, p 87. [Ref.7]. 86. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Monday 18th October 1999, p 12, 74. [Ref.7]. 87. Ibid. p 93. 88. Ibid. p 64-65,73,75. 89. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Friday 15th October 1999, p.6. [Ref.7]. 90. Ibid. p.9-16. 91. Ibid. p.6-8. 92. Ibid. p.18-22. 93. Lord Advocate’s Reference Petition of the Rt. Honourable the Lord Hardie, Justiciary Office Lodged on 21 January 2000. [Ref.11]. 94. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley, Thursday 21st October 1999, p169-171. [Ref.7]. 95. Transcript i. c. H. M. Advocate v. Zelter, Roder, Moxley, Thursday 21st October 1999, p168. [Ref.7]. 96. Geneva Conventions Act, 1957. [Ref.42]. 97. Geneva Conventions (Amendments) Act, 1995. [Ref.43]. 98. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19. 26th July 1946. Taken from the Official Transcript. Published by HMSO, London, 1948, p.427. [Ref.44]. 99. Principles of the Nuremberg Tribunal, 1950, Principle II. [Ref. 14]. 100. M Dixon, Textbook on International Law, 3rd Edition, 1996, p.130-131. [Ref.45]. 101. R v. Bow Street Magistrate, Ex parte Pinochet (No 1)  1 A.C. 61 at 90E. [Ref. 46]. 102. R v. Bow Street Magistrate, Ex parte Pinochet (No 1)  1 A.C. 61 at 89G and 98H. [Ref. 46]. 103. R v. Bow Street Magistrate, Ex parte Pinochet (No 3)  1 A.C. 147 at 276B and 285A. [Ref.47]. 104. Oppenheim’s International Law, Vol.1, 9th Edition, 1992, ed. Sir Robert Jennings QC and Sir Arthur Watts QC, p.56. [Ref.48]. 105. R.Higgins, Problems and Process, Oxford, 1994, p.213. [Ref.50]. 106. Compania Naviera Vascongado v. S.S. Cristina  A.C. 485 p.497. [Ref.51]. 107. Statute of the International Court of Justice, Article 38. [Ref.52]. 108. Trendtex  1 All E.R. 881, p.888. [Ref. 53]. 109. In re Piracy Jure Gentium  A.C. 586, p.588. [Ref. 54]. 110. Radwan v. Radwan  3 W.L.R. 735, p.741. [Ref.55]. 111. R v. Bow Street Magistrate, ex parte Pinochet (No 3)  1 A.C. 147, 214G. [Ref.47]. 112. Principles of Public International Law, OUP, 4th edition, 1990, p.24-25. [Ref.56]. 113. In re Piracy Jure Gentium  A.C. 586, p.592. [Ref.54]. 114. R v. Bow Street Magistrate, ex parte Pinochet (No 3)  1 A.C. 147, 278F-G. [Ref.47]. 115. American Law Institute, Restatement of the Foreign Relations Law of the United States (Third), Vol.1, 1-488, 1987, p60-62. [Ref. 57]. 116. R.v. Bonadie, 1996 CCC Lexis 2765; 109 C.C.C. 3d 356, Ontario Court, p.31. [Ref.76]. 117. (a) Zivilzpozessordnung, Artikel 128 und 411; (b) Austrian Code, Artikel 176 und 357. [Ref.49]. 118. Appeals Chamber of the International Criminal Tribunal of Former Yugoslavia, 38 International legal Mat. 1518 (1999) July 15, 1543 para.129 and 1590-91 note 155. [Ref.69]. 119. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.59, 60 and 134. [Ref.8]. 120. [Note – List of English cases Prof. Grief has appeared in as an expert in international law are:- Langran (Inspector of Taxes) v. Hayter, Exeter County Court, 27 November 1984; Green (Collector of Taxes) v. Pickvance, Birmingham County Court, 27 February 1985; R v. Hutchinson, West Berkshire Magistrates’ Court, 15 January 1999, Reading Crown Court, 3 June 1999; R v. Vinthagen and others, Preston Crown Court, 18 October 1999; R v. Crane and others, West Berkshire Magistrates’ Court, 16 February 2000.] 121. Transcript i.c. H.M.Advocate v.Zelter,Roder, Moxley, Friday 1st October 1999, 11A-D. [Ref.7]. 122. M.Dixon, Textbook on International Law, 3rd Edition. 1996, p131. [Ref. 45]. 123. International Court of Justice, General List No. 95, 8th July 1996, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, paras105(2) (a)and (b). [Ref.12]. 124. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19. 26th July 1946. Taken from the Official Transcript. Published by HMSO, London, 1948, p.428. [Ref.44]. 125. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19. 26th July 1946. Taken from the Official Transcript. Published by HMSO, London, 1948, p.428-9. [Ref.44]. 126. Declaration of Judge Bedjaoui appended to the ICJ Advisory Opinion, para 20. [Ref.15]. 127. Dissenting Opinion of Judge Weeramantry appended to the ICJ Advisory Opinion, para 53. [Ref.58]. 128. The Zyklon B Case, Hamburg, March, 1946, Trial of Bruno Tesch and Two Others. [Ref.59]. 129. Statute of the International Court of Justice, Article 38(1)(c). [Ref.52]. 130. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 29th August, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.312. [Ref.60]. 131. Additional Protocol 1 of 1977 to the Geneva Conventions of 1949,Article 1(2). [Ref.21]. 132. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para.78. [Ref.12]. 133. Dissenting Opinion of Judge Weeramantry appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref.58]. 134. Charles J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000, p.210-214. [Ref.16]. 135. Disenting Opinion of Judge Weeramantry appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, p.34. [Ref.58]. 136. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para.95. [Ref.12]. 137. Corfu Channel Case, ICJ Reports 1949, p. 4, 22. [Ref.71]. 138. Oppenheim’s International Law, Vol.1, 9th Edition, 1992, ed. Sir Robert Jennings QC and Sir Arthur Watts QC, p.998. [Ref.48]. 139. Judge Ranjeva’s Separate Opinion appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, last para. [Ref 73]. 140. Steele v. United Kingdom (1999) 28 E.H.R.R. 603, parra.92 & 101. [Ref.72.]. 141. Iatridis v. Greece (2000) 30 E.H.R.R. 97, para. 58. [Ref.74]. 142. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 30t September, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.447. [Ref.60]. 143. Hansard H.L. Vol.233. Col.831. 2 Dec’63. [Ref.62]. 144. The Zyklon B Case, Hamburg, March, 1946, Trial of Bruno Tesch and Two Others. [Ref.59]. 145. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.32-33 and 135. [Ref.8]. 146. Respect the Law: Dismantle Trident – an open letter to Tony Blair from global citizens of Ploughshares 2000. [Ref. 63]. 147. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.38. [Ref.8]. 148. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, paras 42 and 48, July 8th 1996. [Ref.12]. 149. Greenock Defence Production – H17 – Joint Statement of Zelter, Roder and Moxley. [Ref.6]. 150. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000 p.151 A-B. [Ref.8]. 151. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.3. [Ref.8]. 152. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.135-6. [Ref. 8]. 153. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 19, 26th July, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.428-9. [Ref. 44]. 154. State of Vermont v. Harold G McCann. District Court of Vermont, Unit 2, Chittenden Circuit, Docket No. 2857-7-86 CnCr, VT District Court, Jan 26 1987, Chittenden, p.1. [Ref. 64]. 155. Ibid. p.6. 156. In re Yamashita, 327 US, (1945), p.15, para..2 and p.16, para.2. [Ref.65]. 157. State of Vermont v. Harold G McCann. District Court of Vermont, Unit 2, Chittenden Circuit, Docket No. 2857-7-86 CnCr, VT District Court, Jan 26 1987, Chittenden, p.15. [Ref.64]. 158. Ibid. p.16. 159. Report of Sheriff Gimblett to Lord Justice General et al, Justiciary Office Lodged on 21 August 2000, p.22-23. [Ref.8]. 160. Universal Declaration of Human Rights, Article 8]. This is echoed in the International Covenant on Civil and Political Rights in Article 2(3). [Ref.66]. 161. International Covenant on Civil and Political Rights, Article 2(3). [Ref.67]. 162. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22, 30t September, 1946. Taken from the Official Transcript. Published by HMSO, London, 1950, p.447. [Ref.61]. 163. Principles of the Nuremberg Tribunal, 1950. [Ref. 14]. 164. Universal Declaration of Human Rights, Preambular para.3. [Ref.66]. 165. Ibid. Preambular para.8. 166. Ibid. Article 28. 167. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para.25. [Ref.12]. 168. Universal Declaration of Human Rights, Preambular para 3. [Ref.66]. 169. Ibid. Article 3 and and the International Covenant on Civil and Political Rights, Article 6(1). [Ref.67]. 170. Universal Declaration of Human Rights, Preambular para 3. [Ref.66]. 171. Ibid. Preambular para 8] 172. Ibid. Article 28. 173. Olmstead v. United States, 277 U.S. 438, 485. [Ref.70]. 174. Letter to Dennis Canavan from Colin Boyd of 2/6/00. [Ref. 68]. 175. NJW (Neue Juristische Wochenschrift (New Juristic Weekly), 2, 1993, pages 141 to 149. [Ref.83]. 176. Letter to Dennis Canavan from Colin Boyd of 2/6/00. [Ref. 68]. 177. Disenting Opinion of Judge Weeramantry appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, p.29. [Ref.58].