Wednesday 20th October 1999, 2pm
The following extracts provide a reasonable transcript of Sheriff Gimblett’s ruling.
SHERIFF GIMBLETT: As has been mentioned to me it seems I’m quite clear that the defence in this case for all three accused is based on two matters, the second being if you like esto code, that is if you don’t agree with me on the first ground of defence (inaudible) on the next one.
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 advise given to them. If they were right that the use and threat of nuclear weapons is illegal and as I understand from Ms 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 of the risks of nuclear weapons to try and do something to stop that illegality.
The esto offence, if I can put it that way, was based on an absolute necessity and as Ms Zelter put it in her view it didn’t really matter whether it was illegal or not, the necessity was still there. It’s the principle that’s the illegality.
In considering this question because I cannot get away from it, can you hear me now?
NEW SPEAKER: Yes, thanks.
SHERIFF GIMBLETT: I have really not a great deal to go on other than what the International Court of Justice said in 1996 and indeed their opinion, which is advisory and not binding but I think acknowledged at least acknowledged that it is authorative and agreed by all at least on the face of it that the very careful consideration should be given to its terms.
In reaching their opinion the International Court based their opinions on all the body of law which went before it and is carefully outlined in their opinion and that law to an extent been canvassed in this Court also by the various experts. The opinion did not say that possession of nuclear is illegal. Nowhere does any law say that, even our own High Court has said that the possession of nuclear weapons is in itself not illegal.
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. And on that particular matter the use or threats of use I would concede that the International Court did not say that in all circumstances the threat or use of nuclear weapons was universally prohibited by either customary or conventional international law or indeed on the other hand that there was any customary or conventional international law that authorised the threat or use of nuclear weapons.
Then they issued what I think many many people consider to be an enigmatic decision and although this has been read out on a number of occasions I don’t think it does any harm to be read over again. This is at paragraph 2(?) and it reads as follows
“From the above mentioned requirements that the threat or use of all nuclear weapons would generally be contrary to the rules of international law applicable in arms conflict, and in particular the principles and rules of humanitarian law”.
Then it goes on to say
“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”.
I think it is these last words which are really quite important. We do not know what they meant by the word “generally”, but their final conclusion which is really perhaps what is called a non (inaudible) conclusion, that is we don’t know, would seem to indicate that the use or threat of such weapons could only be used in tight circumstances of self defence in which the very survival of a state would be at stake. And I think read most if you like in that opinion by reading what it says by the President of the Court when he said, if you can just bear with me a minute, I had it marked and I’ve just lost the page. It starts with the words “I cannot over-emphasise” and I’d difficulty finding where that was. Perhaps Mr Mayer or Mr McLaughlin could help me. I’d it marked so clearly and I don’t know what’s happened, I think the page has fallen out. Please forgive me. No, it was a paragraph which dealt I think with the opinion expressed that he was not giving an open door…….I don’t see it in paragraph 11, Miss Zelter.
MR. MAYER: My lady, the passage is quoted by Lord Murray in his article at page 131 in the penultimate paragraph, “These somewhat enigmatic passages are the Court’s collective answer to the question put. The President of the Court expressed an important caveat on the interpretation of that answer. He stated ‘I cannot over-emphasise…”
SHERIFF GIMBLETT: Exactly it. Thank you very much, Mr Mayer. Yes I am (inaudible) when I say that the President said
“I cannot over-emphasise that the inability of the Court to go further than the form of pronouncement at which it has arrived cannot in any way be interpreted as a half open door to recognition of the legality of the threat or use of nuclear armaments”.
I have also looked at the way the judges voted at the end in reaching their final enigmatic conclusion which was pointed to by Mr Mayer and where it seems there was a majority of judges voting against the use of nuclear weapons. And again for the avoidance of doubt what I’m going to do is to quote, for the avoidance of doubt, I’m going to quote what Ronald King Murray said on page 132 in the journal referred to by Mr Mayer. And I think I would have to say that I found this article in the journal very helpful given the status of Ronald King Murray.
What he said about the final opinion was turning to the central matters on which the judges were equally divided until the President’s casting vote the Court’s decision was to the effect that the threat or use of nuclear weapons is unlawful under all circumstances except possibly one last resort self-defence to avoid annihilation, to have a balanced view of the grounds on which the judges decided. It must be noted that three of the judges dissented took an exactly opposite view to the other four dissenters. Four considered that nuclear threat or use was not unlawful as a general rule, the other three in contrast considered that nuclear threat or use to be always unlawful. It follows that an absolute majority of the Court 10 out of 14, a two-thirds majority, judged that threat or use of nuclear weapons is either entirely illegal or generally illegal subject to one possible exception, that is a two-thirds majority of the judges rejected the general lawfulness of nuclear weapons.”
Now, I have the invidious task of deciding on the question of international law here as it relates to nuclear weapons and I do so with great diffidence being only a fairly junior Sheriff without the wisdom and experience of those above me and in the knowledge that the repercussions could be far reaching. But when I became a Sheriff I took an oath which demanded to acting without fear or favour in interpreting the law and as the point of international law has been raised here I have to answer it. I take comfort from the fact that I do so in the full knowledge that there are other higher courts who can rectify any mistake I may probably be making.
So in the absence of anything other than the ICJ opinion which Court considered all the relative law referred to, referred to by counsel and Miss Zelter, having regard to what was said in the article by Ronald King Murray, already referred to, and in particular that part relating to treaties and conventions which concludes with the words
“These then are the principles on which lawfulness of the proposed use of a particular weapon is to be assessed. It is to be noted that in so far as they consist of international customary law they are part of the domestic law of this country”
and having listened to the evidence of Professor Boyle and taken into account all the evidence relating to facts and circumstances relating to this case from him and others, particularly those called as experts and in the absence – and this is very important – in the absence of any expert contradictory evidence from the Crown, I have to conclude that the three accused ladies in front of me, in company with others were justified in thinking that their Britain in their use of Trident not simple possession, their use and deployment of Trident allied with that use and deployment at time of great international unrest, coupled with a first strike reservation policy and in the absence of any indication from any government official then or now that such use fell into the very strict category suggested in the International Court of Justice in their opinion then the threat or use of Trident could be construed as a threat, has indeed been construed as a threat by other states and as such is an infringement of customary international law.
I think following on from that, although it was not touched on this morning, is the three accused took the view that if it was illegal, given the horrendous nature of nuclear weapons they had an obligation in terms of international law, never mind morally to do the little they could to stop the going about the deployment and use of nuclear weapons in a situation which could be construed as a threat. They were not objecting to the objection per se. It follows I think that if I consider that Miss Zelter, Miss Roder and Miss Moxley were justified in the first leg of their defence, namely the international law defence, and had given that as their principle reason for their actions that the Crown has a duty to rebut that defence. They have not done so and accordingly I uphold the three Defence submissions to the extent that they relate to the charges of malicious and wilful damage.
I agree with the comments put forward so succinctly by Mr McLaughlin after his colleague Mr Mayer had spoken concerning the word “malicious”. I am of course aware of the statement referred to in Gordon’s Criminal Law and I won’t repeat the Latin but simply the transaction “No act is punishable unless it is performed by a criminal mind” and therefore no act is punishable under the law of Scotland if it is performed with no criminal intent. I have heard nothing which would make it seem to me that the accused acted with such criminal intent.
Accordingly it now falls to me I believe formally to instruct the Jury that they should acquit all three accused of those charges that relate to wilful and malicious damage, that is charges 1 to 3. that leaves the alternate charge in charge 4. and in fact I think I would for completeness sake I would have to acquit the three accused in respect of the first alternative of Charge 4. So that leaves the second alternative and I would wish the Procurator Fiscal to consider his position there in the light of Mr McLaughlin’s remark, if he had not already done so, to address me if necessary and let me know how he wishes to proceed in respect of the second alternative of Charge 4.
Now, before I do that and before I stop, bearing in mind the three ladies before me had many friends and supporters in Court and outside who may take this decision as an open door for further action which may be against the law. May I say that if anyone else takes such action they do so at their own peril. The law is not clear on nuclear arms. I may be totally wrong and if it goes to appeal I may not be upheld by those above me.
Futhermore, every case depends on the whole facts and circumstances. What I have said is said in very special circumstances of this trial. The evidence led and what happened on board Maytime and the expert witnesses led or not led, not least if it relates to international law and the world wide situation of tension in the world in the months immediately before June ’98 and at that time. That is my decision.