Legal Argument
I will be putting several defences before the court.
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AN INTERNATIONAL LAW DEFENCE that authorises me to act in order to prevent the commission of crimes recognised under international law;
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THE COMMON LAW DEFENCE OF COERCION OR NECESSITY that basically states that having tried all other means to prevent a very great wrong I had no other choice open to me but to join with other concerned people to try to prevent workers engaging in their criminal acts;
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A STATUTORY DEFENCE that authorises me to act if I have a ‘reasonable excuse’ and where I shall be arguing that trying to help prevent mass murder is such a reasonable excuse;
and finally
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A MORAL DEFENCE that is mine as a right as a human being and essentially says that whatever the state of the law it would be right and proper to do the little I can to try to prevent the mass murder of innocent people.
I need to make it quite clear from the outset that I will not be disputing any of the obvious facts of the case.
In order to go beyond the superficialities of our actions on October 24th 2005 and in order for me to have a fair hearing and put a full case for you to hear and judge, I will give evidence on the illegality and criminality of Trident. I do not need to prove that Trident is illegal but I do need to establish a reasonable doubt about the lawfulness of Trident and thus of Rolls Royce Raynesbury supplying essential equipment to Trident. And I must stress here that regardless of the controversy about whether all nuclear weapons are illegal at all times, the issue here in this Court today is whether the British Trident system, as currently deployed, is illegal and criminal and thus whether I had a right to attempt to disrupt part of the supply chain that keeps it on the seas.
I therefore ask that you understand, along with the International Court of Justice, that, “The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’.” [Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice].
INTERNATIONAL LAW DEFENCE
that authorises me to act in order to prevent the commission of crimes recognised under international law.
I would like to start with the International Law Defence as elements of it are relevant to the other defences and it will save undue repetition. I would like to prove the following 3 logical propositions:
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Rolls Royce Raynesbury is engaged in aiding and abetting war crimes, crimes against peace and crimes against humanity.
The crime is the deployment of Trident submarines. The aiding and abetting is the supplying of the nuclear reactors that power Trident submarines. Without the nuclear reactors the submarines could not be deployed.
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Nonviolent civil resistance to try to prevent international crimes of such horrendous gravity is lawful.
The nonviolent civil resistance was the blocking of the entrance into the Rolls Royce Raynesbury factory.
The lawfulness comes under international humanitarian law.
Let me take each of these points in turn.
1.Rolls Royce Raynesbury is engaged in aiding and abetting war crimes, crimes against peace and crimes against humanity.
I refer you to the Advisory Opinion of July 8th 1996 where it was made quite clear that the International Court of Justice agreed that nuclear weapons would generally breach all of the following international laws:- (details on page 101 of the TP Handbook) The Declaration of St.Petersburg, 1868; The Martens Clause, 1899; The Hague Conventions; the UN Charter , 1945; The Universal Declaration of Human Rights, 1948; The Geneva Conventions, 1949; The Protocols Additional to the Geneva Conventions, 1977.
Serious violations of these treaties and declarations are defined as criminal acts under the Nuremberg Principles, 1950, in that:
Principle VI(a) defines Crimes against Peace as ‘Planning, preparation, …of…a war in violation of international treaties, agreements or assurances…Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned’.
Nuremberg Principle VI (b) defines War Crimes as ‘violations of the laws or customs of war’. Preparations for War Crimes is itself a war crime (international Criminal Court Statute Article 25 (3) (page 26 of LAR part 1).
Nuremberg Principle VI (c) defines Crimes against Humanity as ‘murder, extermination……and other inhumane acts done against any civilian population … when carried on in execution of, or in connection with any crime against peace or any war crime’.
The Advisory Opinion explained very clearly the cardinal principles of international law at para 78 where it explains that: ‘The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants. 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. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use’.
Now to move to the specifics of the UK’s Trident weapon system and the UK’s nuclear policy:
The following facts are in the public domain, and were assumed to be facts in both the Greenock Trial and the Lord Advocates Reference No.1 of 2000:-
the Trident system consists of 4 Trident submarines, each equipped with 48 100 to 120 kiloton nuclear warheads, each of which can hit a different target, each of which is approximately 8 to 10 times more powerful than the bombs use at Hiroshima and Nagasaki,
the blast, heat and radioactive effects of detonation of such a warhead would be extreme, with inevitably uncontainable radioactive effects, in terms of both space and time,
the damage done, and the suffering caused, could not be other than indiscriminate,
it would not be possible to use the weapons in restricted ways, defensively or tactically or to direct them only against specific types of targets,
it was not possible to use the weapons in such a way as to remove this element of being indiscriminate in the suffering and damage which they would cause,
the weapons would be inevitably indiscriminate as between military personnel and civilians who could not be excluded from the uncontainable effects,
the Government’s actual willingness and intention to use Trident nuclear weapons,
the familiar facts of round-the-clock deployment, permanent preparedness to fire, long-term targeting and deployments to particular trouble spots, various statements form high Government sources indicating a willingness and intention to use these weapons in response not only to nuclear attack but in certain other circumstances,
the risk that if certain circumstances were to emerge there would be a risk of threat and actual use, and
the continuing and continuous risk of actual use and indiscriminate consequences that are inherent in deployment of Trident nuclear weapons.
Given these facts it is clear that any use of the nuclear weapons on Trident would be unlawful under International Law. But may I also remind the Court that both the Geneva Conventions and the Genocide Act have both been brought directly into English Law. I am sure that you do not need me to read out all the sections of the Geneva Conventions that would be breached by Trident – as a quick guide – basically all the civilian infrastructure destroyed by the Israelis in their recent aggression against the Lebanese population, the destruction of water, energy, roads, railways, mosques, hospitals etc etc are all breaches of the Geneva Conventions. It is obvious that just one Trident would do far more infrastructural damage and thus be even more criminal. As a relevant aside I would like to remind you that the Geneva Conventions include that great and well known protective Martins Clause that explains that civilians remain under the protection of the principles of humanity and the dictates of the public conscience. I believe that Trident Ploughshares is a manifestation of that ‘public conscience’.
You may say, that UK nuclear weapons are not being used at the moment. But this is not true – they are being deployed and are being used to threaten mass destruction. And UK nuclear deterrence is an unlawful threat in that the ICJ held that it is unlawful under international law to threaten to use – or even signal its readiness to use – force which it would be unlawful to use. Para 48 of the Advisory Opinion states that even possession of nuclear weapons ‘may indeed justify an inference of preparedness to use them’ and that such a ‘threat’ would be unlawful if the ‘particular use of force envisaged would necessarily violate the principles of necessity and proportionality’.
Thus the UK Trident system is illegal and the deployment of Trident is a criminal act.
And I am glad that this is so, for to accept the legality of Trident, to accept the legality of threatening mass murder, would be to bring the law into disrepute.
A relevant bit of legal history about the estimated 140,000 people who lost their lives as a result of the Hiroshima bomb is the Shimoda Case. The destruction of Hiroshima was ruled a war crime in the Case of Ryuichi Shimoda et al vs. The State in Tokyo, 1963 where it was ruled 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’. Remember that Trident each warhead is 8 to 10 times more powerful.
Referring you back to the inchoate crimes connected with War Crimes, Crimes against Peace and Crimes against humanity I therefore submit that providing the nuclear reactors for Trident (a criminal war machine) is thus in itself a crime. And again, to give some historical legal context, may I remind the court of the Zyklon B Case, Hamburg, 1946, Trial of Bruno Tesch and two others. This trial was part of the Nuremberg Trials where various industrialists were convicted and hung for manufacturing the Zyklon B gas that was provided to the gas chambers to exterminate the victims in the Nazi concentration camps, even though they argued they had sold it for exterminating rats not people and they could not be responsible for its end use. We also have to remember that the concentration camps were all legal according to German Law but as the Nuremberg trial showed they were totally criminal under international law.
Thus I think I have proved that the war crime, crime against peace and crime against humanity is the deployment of Trident submarines and that preparations for these crimes by supplying the engines and nuclear reactors for Trident are crimes in international law.
2.Nonviolent civil resistance to try to prevent international crimes of such horrendous gravity is lawful.
The nonviolent civil resistance was the blocking of the entrance into the Rolls Royce Raynesbury factory.
The lawfulness comes from international humanitarian law.
The Universal Declaration of Human Rights as the chief exponent of customary international law with regard to fundamental human rights is of relevance here. The preamble says:- ‘The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind shall strive …. 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 peoples of territories under their jurisdiction’ [Universal Declaration of Human Rights, 1948].
The rights then outlined in the Charter are impossible to reconcile with the use of nuclear weapons. For instance to look at just the first Article where we are all asked to act towards one another in a spirit of brotherhood, it is obvious that this is impossible if we threaten indiscriminate mass destruction.
I therefore have a peaceful privilege, if not duty, under this UN Declaration of Human Rights, to effect adherence by the UK government and military to this Declaration.
The Nuremberg Charter also authorises me to act in order to prevent the commission of crimes recognised under international law. The International Military Tribunal, faced with the contention that international law provided no punishment for individuals, held as follows: ‘That international law imposes duties and liabilities upon individuals as well as states has long been recognised …. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced …. The true test, which is found in varying degrees in the criminal law of most nations …. is whether moral choice was in fact possible’ [Judgement of the Nuremberg International Tribunal, 41, American Journal of International Law 12, 1947, at 220-221].
This duty derives from Article 8 of the Charter of the International Military Tribunal that states that the fact that the defendant ‘acted pursuant to order of his government or of a superior shall not free him from responsibility’ in international law [Charter of the International Military Tribunal, Article 8].
Similarly, in the trial of German industrialists for war crimes committed during World War II, the Tribunal stated with respect to private individuals, ‘International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the government are criminal when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona. The application of international law to individuals is no novelty’ [The Flick case, VI Trials of War Criminals, 1952. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, pp 237].
The example I gave earlier was that of the German businessmen who provided the Zyklon B gas that was used in the gas chambers in Nazi Germany and who were eventually found guilty and sentenced to death for their breaches of international law [Zyklon B case, Law Reports of Trials of War Criminals, Vol.1, p 93, London 1947]. Saying they were only running a business, and providing jobs and pretending that they didn’t know what the gas was to be used for, was no defence for them.
I contend that if international law punishes individuals for complicity in the commission of war crimes, crimes against peace, crimes against humanity and offences against the peace and security of mankind, then, by inference, international law must authorise acts taken to prevent those crimes. To go back to the German industrialists who were found guilty after they had helped to kill thousands of people, it is quite obvious that any responsible citizen who had tried to prevent the gas from reaching the chambers, or had tried to prevent the research on the gas from taking place, even if she had caused some property damage, would have been acting lawfully.
Justice Jackson, Chief Prosecutor in the 1945 Nuremberg War Crimes Trial clearly establishes that the Nuremberg Principles binds citizens when he says, ‘The very essence of the Nuremberg Charter is that individuals have international duties which transcend national obligations of obedience imposed by the individual state’ [6 F.R-D. 69,110,1946. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, p237].
The Tokyo War Crimes Tribunal went so far as to declare, ‘Anyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent the commission of crimes’ [Ref.35 – Tokyo War Crimes Trial Decision. Quoted in Defending Civil Resistance Under International Law, Francis Boyle, p 237].
Now the ICJ has confirmed that the Nuremberg Charter applies to nuclear weapons [Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, General List No. 95, 8 July 1996, International Court of Justice, para 80]. Thus military personnel should obey the Nuremberg Charter even if given a contrary order by a superior or by his national government. The British Manual of Military Law actually expresses this principle in stronger language saying, ‘If a person who is bound to obey a duly constituted superior receives from a superior an order to do some act or make some omission which is manifestly illegal, he is bound under a legal duty to refuse to carry out the order and if he does carry it out he will be criminally responsible for what he does in doing so’ [British Manual of Military Law, Part 1, 12th Edition, Amendment No.14, p 157].
This would mean refusing to fire a 100 kiloton nuclear warhead. It also includes refusing to supply the engines and power for the nuclear submarine that holds the firing mechanisms for the warheads.
Accordingly, I contend that under international law I have a positive duty to take such steps as are reasonable and necessary to prevent the commission of war crimes and other violations of international humanitarian law and that this duty is supreme vis-a-vis the domestic law of any state, which includes England.
However, I can understand if the Court might think that this is rather much to ask of ordinary people – that they act to prevent crime at all times. Was it really morally reprehensible, let alone criminal, for scared people not to block the trains on the way to Auschwitz? They certainly had a right but it may be going too far to say they had a duty. If the principle of individual responsibility for offences against international law or complicity in those offences, does not infer a positive duty to act to prevent them, because it is quite understandable that not everyone possesses the same resources and ‘moral choices’ as others to enable them to act to prevent crime, then it must at least imply a right to take such steps as are reasonably calculated to bring about that end. I thus submit therefore that I at least had a right to take action under international law, the reasonable exercise of which made my blocking of the entrance into Rolls Royce Raynesbury lawful.
THE COMMON LAW DEFENCE OF COERCION OR NECESSITY
that basically states that having tried all other means to prevent a very great wrong I had no other choice open to me but to join with other concerned people to try to prevent workers engaging in their criminal acts.
This defence may be used where the accused has done something which is on the face of it unlawful but which is justified by the extreme circumstances of the situation. For instance, you are permitted to destroy property belonging to a person in order to save his life – by committing a crime you have avoided a greater evil. The concept that ‘one should not be punished when an act of breaking the law prevents more evil than it has caused’ is an essential and basic part of common law.
I have shown in the statements I made in the International Defence above that I believe the maintenance of Trident and Trident related equipment is a crime under international and national law and that the proper enforcement of these laws could prevent mass murder.
I gave evidence from the witness Box that I have tried over many years to get the Courts, the Police, the Politicians to right this wrong. I have lobbied, written letters, written books, given interviews, demonstrated etc etc. But the factories continue to supply Trident and there is even work going on at Aldermaston at this minute that is researching a replacement to Trident that will completely breach Article VI of the Non-Proliferation Treaty and the UK’s promise of nuclear disarmament.
After all of this effort I felt compelled to sit in the road outside Derby and try to stop workers from entering the factory. As I said in the witness box actions like that taken on the 24th October 2005 raise very serious and legitimate public concerns by providing a visible public opposition and breaking the official silence and are an essential part of any democratic process. Actions like mine can lead to the prevention of crime. Indeed when Government’s do great wrong and when the courts and police do little to check the international crimes being perpetrated by the government, civil resistance and effective nonviolent protest may be the only things that will galvanise enough public pressure to create necessary change and bring about respect for universal human rights.
A STATUTORY DEFENCE
that authorises me to act if I have a ‘reasonable excuse’ and where I shall be arguing that trying to help prevent mass murder is such a reasonable excuse.
I believe that the use to which I put this road was reasonable in the circumstances;
I refer to the judgement of the Divisional Court in Hirst and Agu (a case arising out of an animal rights protest in January 1985 in Bradford) where the original conviction was quashed because the Crown Court had not considered whether they had ’lawful excuse’ for the obstruction, which is a matter of fact. The case sets out in detail the conditions for a defence of ’lawful authority and excuse’. Lord Glidewell, in talking of Nagy v Weston, says ’It is undoubtedly true … that there must be proof that the user in question was an unreasonable user. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction.’ And Mr Justice Otton, when considering the rights of protest states, ’These are rights which it is in the public interest that individuals should possess; and indeed that they should exercise without impediment ….. It is often the only means by which grievances can be brought to the knowledge of those in authority – at any rate with such impact as to gain a remedy….’
Our actions were very reasonable given the circumstances. The circumstances were that the factory we were protesting outside is engaged in providing the wherewithal to enable an illegal weapon of mass destruction to be deployed all over the planet, a war machine that could never distinguish between civilian and military targets ad which thus encouraged lawlessness and nuclear proliferation. The criminal activities of Rolls Royce Raynesbury were of such a magnitude that it was reasonable to try to prevent workers from getting into the factory to continue their criminal acts and to also draw public and government attention by way of such a protest.
We were completely nonviolent and our nonviolence guidelines made it clear that we would obviously move for any emergency vehicles. We were courteous at all times.
I therefore ask you to acquit all of us.