Angie Zelter, 5th April 2001
We are disappointed that the Scottish Court system has let itself and us down and did not rise to the challenge we presented it with. It had an historic opportunity to back the rule of law and instead it chose to back state terrorism posing as self-defence.
Fortunately, our legal system is not just dependent on a few Judges but still retains a recognition that the law must be based upon the common person’s reasonable appreciation of the facts and morality – this is what a jury is all about. The jury system is one of the safeguards of our democratic system and ensures that the legal system does not get too out of contact with real life and common sense.
It is significant that in nearly every one of the major Trident Ploughshares cases, those that end up in front of a jury, we have been acquitted. At Greenock, if the Sheriff had not decided in her own right on matters of law that we were not guilty, then we would most likely have had a jury acquittal. Instead we were fortunate to have a brave woman, Sheriff Gimblett, who, without fear or favour, acquitted us on international law grounds. This was such a challenge to the ‘legitimacy’ of the Trident nuclear weapons system and had such wide ramifications – for instance if the use of Trident is criminal then the current Trident Commanders are actually conspiring to commit war crimes at the present time – that the State had to step in. We were then forced into an ‘appeal by the backdoor’ through the mechanism of the Lord Advocate’s Reference.
Advice from lawyers around the world was that there was little chance that any High Court within a nuclear weapon state would be allowed to outlaw nuclear weapons however strong the arguments. But this did not put us off. We felt that however distorted the legal system was, the law is not just for the powerful but is for us all. We were not prepared to be so cynical that we would not even attempt the struggle. We are not naïve, we knew there would be tremendous pressures on the Judges and the system behind the scenes but we would do our best and we would appeal to all that was best in the law. Our basic premise was that the law must be based upon common human morality or else lose its legitimacy in the eyes of the people. We also assumed that it applied to everyone, poor or rich, weak or powerful. Surely this is what is meant by the rule of law? We wished to reclaim the law from the abuse of the powerful and put it to its proper use – the protection and defence of the weak and powerless. Say not the struggle naught availeth!
On March 30th, at 10 a.m. our hopes in the Scottish Courts were dashed. The Opinion could have been written by the Ministry of Defence itself – so much for the separation of executive and judiciary. Our only consolation after a close reading is that the Opinion is muddled, inaccurate and does not deal with (and therefore does not undermine) any of our strong arguments.
The Judges’ Opinion is based upon the same underlying lie as the UK Government’s position at the World Court, the same lie as deterrence is based upon – that deterrence is just a bluff and that we would never actually use our nuclear weapons, and that they are therefore lawful. The Government does this at the very same time, mind you, as they tell Iraq and other ‘enemy’ states that nuclear weapons would be used – and the Government does not mean, as the Crown pretended in the LAR, just to use them against an isolated group of ships in the middle of the ocean in a crisis situation of last resort to ensure the survival of the UK. The UK does not deploy 4 submarines with 144 nuclear warheads to use against isolated targets – they are there to threaten mass destruction.
The Opinion is based upon the outrageous justification that threatening mass destruction is lawful in times of peace and only becomes unlawful in times of war when one knows the exact target. This leaves them able to hang on to their nuclear deterrence and their hope that we will all leave it at that and stop asking awkward questions. However, reading between the lines we can detect that Britain feels justified in preparing to break international humanitarian law and is in fact practising daily to break almost every single international convention and law on armed conflict. The UK Government said as much at the ICJ Hearings when Sir Nicholas Lyell asked, ‘If all other means at their disposal are insufficient, then how can it be said that the use of a nuclear weapon must be disproportionate?’
The Opinion is a perverse opinion and against the people’s interest. Protecting a State’s interests is not the same as protecting people’s interests. The justified anger at the Court backing threats to commit mass murder has turned into a fierce determination that the struggle will continue, that People’s Disarmament will continue. We will go to Faslane on Saturday 7th April to continue to take the law into our own hands, to uphold international humanitarian law, to insist that the law is in step with common human ethics. We are not going to give up on the law or our own humanity.
To sum up the main points raised in the Opinion. POSITIVES. P1. Customary International Law is part of Scots Law.
‘A rule of customary international law is a rule of Scots law’ [para 23]. It is directly a matter for the judge. It isn’t ‘foreign law’ [para 24]. But it may be complicated so they don’t rule out the possibility that experts may be heard to determine whether a particular rule has won the general acceptance necessary to constitute a rule of customary international law (ie whether an opinio juris has emerged) [para 27]. But such expert opinion would be presented without the presence of a jury, in order to clarify matters for the Judge who would then instruct the jury.
This means that the Procurator Fiscal Mr. Donnelly will have to eat his words – he has said on numerous occasions at the District Court in Helensburgh that international law is not real law and does not apply in Scotland. One of the major successes of our campaign has been the education of ourselves and others, including the legal profession, about international humanitarian law. P2. The Necessity Defence applies to rescuing any person in any place.
The Court, in discussing Necessity defences in Scots law, stated that there was ‘no acceptable basis for restricting rescue to protection of persons already known to and having a relationship with the rescuer at the moment of response to the other’s danger’ [para 44]. Likewise ‘where the place and person or persons under threat from the apprehended danger were remote from the locus of the allegedly malicious damage. We can see no reason in principle why the defence [of necessity] should not be available’ [para 45]. These are major clarifications which are in accordance with common sense and morality and it is good that we will not have to waste time in the future arguing such obvious points. P3. A specific threat could breach customary international law.
The Court does say, ‘A State which has a deployed deterrent plainly could and might take some step which turned the situation into one of armed conflict, and involved a sufficiently specific threat to constitute a breach of customary international law.’ [para 97] even though it does not connect this with the known facts of Trident sailing into the Mediterranean while the air force was bombing in former Yugoslavia and in Iraq. P4. Intervention against active threat might be lawful under Scots law.
The Court makes an implicit admission of the possibility that if the UK were to move from mere general deterrent threat to active threat of use against a target state, then intervention might be legitimate (though not under customary international law), ‘but any issue of justification would depend not on the mere fact [sic] of any such illegality, but upon the Scots law of necessity, with the requirements inter alia of immediacy of danger and prospects of prevention’. [paras105 and 106]. We could use this to argue that this implies that present members of the Armed Forces have a greater possibility of a valid defence in law than we would because they could make more effective plans now to prevent nuclear weapons from ever being launched in armed conflict in the future. We shall be producing a leaflet for the Armed Forces that encourages them to prevent mass murder by ensuring that our nuclear weapons could never actually be launched – perhaps by inserting hidden instructions in the computer targeting programmes that in the event of a real launch would prevent such a launch from occurring. This would not be incitement to disaffection but encouragement to uphold international law and a practical refusal to become complicit in actual war crimes.
NEGATIVES.
N1. Disposition and armament of the Armed Forces is non-justiciable.
The Court brought up the tired old doctrine of Royal Prerogative according to which any issue of national security and defence cannot be questioned by the courts [paras 56, 57 and 113]. There is an argument about whether blatant illegalities and criminalities can be hidden in this devious manner. And we argued that any Government policy and action that is outside the law can and must be open to challenge by the courts.
At no point did the Court show the slightest insight into the fact that none of the respondents were against defending people, it was murdering non-combatants and poisoning the globe they objected to. Thus, when citing Lord Reid in Chandler – ‘It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the grounds that such discretion has been wrongly [sic] exercised’ – they are happy to conflate a principled challenge as to the legality of the course of conduct being pursued by the Crown with a mere political dispute about what is the best or cheapest defence policy or an operational dispute as regards efficiency, etc.
However, they inadvertently undermine their own reactionary retreat to Chandler when at para 59 they quote Simon Brown LJ in ex parte Smith: ‘only cases involving national security properly so called and where in addition [sic] the courts really do lack the expertise or material to form a judgement on the point of issue’ would be ruled strictly beyond the court’s purview.
And obviously it is not to defence nor to national security ‘properly so called’ that we object. Put simply, there may be a prerogative for defending the realm but not for mass murder of innocent civilians.
The Court made no attempt to take account of the developments in trans-national accountability implicit in proposals for the International Criminal Court, but instead maintained that the state is above the law. They did not explore in any depth this issue of justiciability – preferring to keep their heads down and defend the status quo. The pointed submissions that we made on the Justices Case at Nuremberg, where the German Judiciary were convicted of putting State law above International law, were not addressed at all. N2. A person may not commit an offence in order to stop serious crime.
The Court invoked Palazzo v Copeland to the effect that it is no defence to malicious damage that the damage was done to prevent another offence, and summarised: ‘The principles of our domestic law are general and clear. A person may not take the law into his own hands. A person may not commit an offence in an attempt to stop another.’
The Court feared that it would ‘invite anarchy’ for ordinary people to take the law into their own hands! But if it is the law – and Trident Ploughshares have always stood on that foundation – then surely only a world in which ordinary people do feel moral responsibility and social empowerment to take action to uphold, defend and implement the law and frustrate terrorist threats, only such a just world order of responsible civic activism will be truly safe. It is interesting how often our Government calls upon people in ‘repressive’ regimes to act against their Government if that Government abuses human rights and threatens global security but does not feel able to apply the same principles to its own civic society. The Court states very clearly that they do not approve of ‘self-appointed substitute law enforcers’ [para 99]. The Court are putting us in double-bind situations and doing everything they can to make sure that our acts of legitimate nuclear disarmament will be seen as completely lawless. They say do not take the law into your own hands, tell the responsible authorities, while knowing full well that when we do we will be ignored or told the whole matter is not justiciable, since Defence is a matter exclusively for the executive. When matters of peace and war were purely matters for rulers and soldiers this kind of attitude was more excusable. But in a world where 90% of the casualties in any war are civilians then matters of ‘defence’ fall very clearly into the normal democratic and civilian spheres of interest and control and must be justiciable.
Significantly the Court failed to respond to our motions asking for guidance on any alternative courses of action we could take. They concede by their silence that we have none.
The Judges found it hard to understand the concept of nonviolence in the context of necessity. They implied that it was valid to act violently in a crisis but not nonviolently to prevent a crisis [para 20]. This is very close to Government foreign and defence policy and is one of the reasons they leave problems in the world until they get to the point where they can justify military intervention and more arms sales. It is very far from current modern thinking on preventative nonviolent conflict resolution. And it is very far from common sense.
The Opinion shows the Judges finding excuses for not addressing issues of the legality of nuclear weapons until it’s too late. They do this by stating that in times of peace, international humanitarian law does not apply, and also by stating that the threat implicit in nuclear deterrence is not specific enough to be a real threat. But we know that even when the button is about to be pressed and we’re at war, some government lawyer will still stand up and say that the naval officers don’t know where this warhead is targeted because it’s a secret, so they are not making a specific threat, and so it is not a criminal act. According to the Judge’s logic you can’t judge whether the threat to press the button was legal or not until the weapon is in mid-air and on its way to a known target. By which time it is too late! We will continue to try to disarm Trident because we know that now is the time for such action, not some future date, when we are at war, in a national state of emergency, when we will not be able to be very effective. N3. Rejection of Nuremberg Principles.
The Opinion falsely asserts, in relation to the Nuremberg Principles, that “the argument based on them was not insisted in” [para 89]. However, this is false, we did insist upon them. The Judges dismissed our extension of the Nuremberg Principles which justify citizens taking action to prevent the most serious crimes known to mankind [paras 88-91]. This puts citizens that are concerned about war crimes in a Catch 22 situation – collusion or criminalisation. We do not accept this. N4. Failure to admit our claim that UK law criminalises Trident too.
The Court statement that ‘It was not suggested that what the Government were doing with Trident would be illegal or criminal apart from customary international law’ [paras 32 and 35] is untrue. We specifically did say that preparations and threats to use Trident were criminal in UK law and Scots law. Most importantly we raised and read out whole sections of the Geneva Conventions Act of 1957 and the Geneva Conventions (Amendments) Act of 1995. The Court made no attempt to answer our questions of how a Trident 100 kiloton warhead could be used without breaching these Acts. N5. Failure to admit that we did not concede possession as being lawful.
Likewise the Court simply ignored a statement that specifically did NOT concede that mere possession was lawful [para 62] and misconstrued our position by saying “The respondents are content to proceed upon the basis that mere possession would not entail any illegality on the part of the Government”. We did not concede it because many of us find it hard to understand how a legal system could accept the lawful possession of an object that could never be used lawfully. The way the Government and the Court get around this one is to pretend they could be used lawfully but fail to explain or give any examples. N6. Failure to distinguish between different necessity cases.
The Court also ignored the real situation faced by the respondents. By sticking so closely to the ‘normal’ sort of case of necessity defences (broken fence around field with dangerous bull in it, dog worrying sheep, lorry rolling down a hill towards people, etc) they completely invalidated the experience and perspective of the defendants. Thus at para 37, we read that ‘A danger which is threatened at a future time, as opposed to immediately impending [sic], might be avoided by informing the owner of the property and so allowing [!] that person [the MoD] to take action to avert the danger, or informing some responsible authority of the perceived need for intervention’ – as if we hadn’t spent years informing the authorities. It is irrational to equate the timeline for a run-of-the mill necessity case with the timeline for preventing a nuclear holocaust. It is ridiculous to suppose that one would be able to take action after Trident’s warheads have been launched. The court’s reasoning here is a classic example of applying a principle taken from one factual context to an entirely different context in which the principle cannot possibly serve the same function. N7. Failure to distinguish between legitimate self-defence and reckless threats of mass destruction.
The Court also ignored repeated community-based analogies which we put before them to the effect that it was one thing for two neighbours to fall out and even come to blows with each other, but that it was another thing entirely, and one which was abhorrent to our normal moral consensus as a society, for one neighbour to burn the other’s house down at dead of night with the death of babies and aged relatives, and for the resulting fires to poison the entire neighbourhood including the first neighbour’s own family.
N8. Failure to accept that self-help is a necessity.
Aidan O’Neill QC had likened the respondents’ action to that of a community self-help group of mothers who began to campaign to get a heroin dealer arrested. ‘Nonsense’, the police or Procurator Fiscal say, ‘that man is a member of Muirfield Golf Club and can’t possibly be doing anything criminal’. So the women wait their moment and when the dealer is out one day they break into his flat and destroy his heroin and scales. Would it invalidate their action that another heroin dealer might come into the same area subsequently? But if, being part of a continuing campaign [which the Court at para 20 was inclined to hold against the respondents], the same thing happened repeatedly, sooner or later heroin pushers would be deterred from trying to operate in that neighbourhood. Thus the action of the three women was valid in itself and also further justified by being part of a sequence of actions. Just because any particular arrest of a dealer (by vigilantes or for that matter by regular police) doesn’t have the effect of by itself immediately terminating all hard-drug crime in an area, doesn’t mean to say that the action isn’t capable of leading towards the ending of the dangerous crime complained of. Once again, the Court failed to respond to this. Maybe because they see Trident deployments as lawful and as a victimless non-crime, they see no basis for ‘self-appointed law enforcers’ to intervene to uphold the law or to prevent harm. N9. Failure to understand the nature of the risk.
The Court completely failed to understand the vital concept of risk as involving the likelihood of a bad outcome multiplied by the badness of the outcome should it transpire. They also completely failed to evince any sense of the unimaginable horrors of even one nuclear explosion, let alone a nuclear campaign or war, let alone nuclear winter or the possible end of human life on earth. Accordingly, they assumed Deterrence as an acceptable policy. No consideration was given to the ongoing risks of accidental explosion or war which nuclear deployments impose on others willy-nilly. ‘In the present case, there is no question of the alleged danger arising from contingencies such as natural disasters’ [para 35]. ‘The actor must have good cause to fear that death or serious injury would [sic – not might] result unless he acted’ [para 42]. ‘Merely making a danger less likely might not be regarded as justified by necessity at all’ [para 46]. Note the use of the word ‘merely’ – as in merely reducing the likelihood of the dog savaging some sheep. Yet the worst case scenario Trident could bring about is the end of human life on earth. ‘The conduct carried out must be broadly proportional to the risk’ they admit at para 47 – but still they have no sense that even a tiny likelihood of the end of the world happening is a huge risk. And yet again at para 46: ‘If there were no prospect that the conduct complained of would affect the danger anticipated the relationship between the danger and the conduct would not be established. … if the action could achieve no more [!] than, say, postponement or interruption of danger … or some lessening of its likelihood … the assessment of any necessity would be less simple.’
The Court also assume Nuclear Deterrence is a harm-free policy. Thus they completely fail to understand the point that Trident is all the time being used in the sense of being used to put in fear. They refer to ‘a danger which is threatened at a future time, as opposed to [sic] immediately pending …’ [para 37]. There is no awareness that nuclear deterrence is a threat made to everyone, that puts non-combatant people and neutral nations all over the world in fear of their existence. It lowers the moral water-table in international society and violates our right to freedom from fear, as also the right of all nations, not only neutral ones, to international security
This takes us to the Court’s view of deterrence as not representing a real threat, merely a general display of military might like tanks in Red Square, quoting Lord Murray [para 98]. But the whole point is that tanks in Red Square – although they might often be asked to fire much too close to schools and hospitals, or might be used directly in a terrorist mode – could at least be used lawfully, discriminately. In contrast, nuclear deployments represent a standing threat to all the third parties and non-combatant categories in the world – neutral nations, peaceful civilians, children, the old, pregnant mothers, patients, medical workers and hospitals, the environment, the unborn generations. These people are being put on notice that should any nation attack a nuclear nation (or its protected ally) the UK reserves the right to defend itself not merely by the legitimate use of FORCE (defined as some focusable extension of fist, sword, spear, etc) but also by the setting of chemical fires and the vandalising of electronic equipment across a continent (Electro-Magnetic Pulse effects) and the spreading of uncontrollable, undirectable poison which persists with cumulative genetic damage through thousands of generations.
And yet domestic law is so clear. If someone becomes very afraid of his neighbours and announces, a propos of nothing and to no named neighbour in particular, that he has a gadget which, if he is attacked, he will not hesitate to use, a gadget which will, or merely may, poison the entire neighbourhood, the criminal law would step right in. It would not avail the defendant that he had not actually named any particular neighbour, nor was he even in dispute with any of them, nor was it very likely that he would ever ‘have to’ use it, nor was it even very poisonous the way he had in mind to use it. The law would step right in because every last person in the entire neighbourhood could legitimately be said to be afflicted by the risk which that person’s diseased reasoning and physical preparations represented. It would not matter that the person concerned did not subjectively intend to attack children in the next block. That such would be the inevitable result of his action if he ever carried out the course of action once attacked would be enough to render his preparations and plans and deployment threatening and unlawful.
By contrast to the precautionary principle which would be employed vis a vis our paranoid defendant – or a polluting company – the Appeal Court seemed only too happy to accept the reassurances of the UK Government that the use of tactical nuclear weapons in submarine warfare could ‘easily’ be lawful and did not mention the ‘profoundly pernicious effects in space and time’ which all out strategic nuclear war might involve [para 83].
Because the Court see nuclear weapons as basically ordinary weapons, which do not menace the entire civilian world, they are incapable of considering that deployment is both itself illegal now (harming people around the world already) and threatens a future catastrophe. The Court cannot admit that the damage which the defendants did was capable of assisting in the reduction of the danger of both sorts of harm, especially when viewed as part of a sequence of deterrent acts against illegal terrorism. We have no such problem. N10. Failure to respect the International Court of Justice.
The Appeal Court indicates a profound lack of respect for the foremost judicial authority in the world whose members, unlike Scottish judges, were specialists in international law, and had the benefit of many months of study, research, argument, submissions from dozens of nations, etc before bringing their landmark judgement of 8 July 1996 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’ (Dipositif E).
At the outset, we are confronted by an astounding contradiction within a single paragraph (para 66). We are told in line 2 that the ICJ Opinion “is an advisory opinion, not a judicial determination of customary international law” and in line 8 that “the advisory opinion may be regarded as confirmatory of the then rules of customary law.” It is easy to agree with the second statement, but not with the first. Since the ICJ Advisory Opinion is indeed confirmatory of customary law, how can it not be a determination of that very same law?
An ICJ Advisory Opinion is given to the United Nations General Assembly in much the same way as the High Court’s own Opinion can be said to advise the Lord Advocate. If the High Court chooses to rubbish the ICJ Advisory Opinion in such a disrespectful way then we could say they are giving us a precedent for doing the same with their own Opinion! The ICJ advises on the law, which is binding on all states. The ICJ speaks of ‘intransgressible principles of customary international law’ at para 79, quoted by the Appeal Court at para 76. Thus it ought to bind nations in almost as direct a way as the Lord Advocate’s Reference is now supposed to bind all lower courts in Scotland. In much the same way, if I ask a tax inspector for information about tax law it doesn’t mean I can wriggle out of paying the tax indicated on the grounds that I had merely received an opinion from the tax inspector.
The Appeal Court greatly exaggerates the divisions within the ICJ and fails to register that although Dispositif E (above) was only passed by 7-7 on the casting vote of the President, the actual underlying majority is 10-4, since 3 of the minority seven believe that the Court did have enough factual and legal material to conclude that nuclear weapons would be illegal to use and threaten even in the tiny residual area of non licet (not deciding, not ruling) which the Court majority saw fit to leave – and which the Court President stressed as strongly as he could must not be seen as any kind of loophole for permitted use of nuclear weapons.
The clearest reading of the International Court’s Opinion has been that it did not wish to rule on this residuum area of uncertainty because it lacked knowledge about the possibility of making and using micro and mini nuclear weapons of 0.1 to 1 kiloton which would be relatively ‘clean’. The ICJ did observe that no nation had denied that nuclear weapons would have to be used in conformity with international law; that merely having the right to defend oneself according to Art 2.4 and Art 51 of the Charter (jus ad bellum) did not exempt nations from exercising that right in lawful ways (jus in bello); that nuclear weapons seemed ‘scarcely reconcilable’ with norms such as discrimination, non-combatant immunity, neutrality, and not causing unnecessary suffering; and that no nations had advanced concrete scenarios of ways and circumstances in which nuclear weapons might be used lawfully (merely assertions that they could be). Yet this scrupulous hesitancy to ‘conclude with certainty’ concerning a possible category of ‘clean’ small, tactical nuclear weapons is exploited by the Appeal Court as a loophole to suggest that Trident ‘warheads’ of 100 kilotons could also be used lawfully!!! At para 86 the Appeal Court openly suggests that there might be some circumstances which would arise which would mean that Trident could be used lawfully ‘even if seen as inevitably indiscriminate’.
In reaching this shameful conclusion the Appeal Court rely on another strand which prevented the ICJ Court majority seven from wishing to ‘conclude with certainty’ that every use of nuclear weapons must necessarily be illegal. This concerns the different views in the world community concerning opinio juris. It talks about an emerging norm of non-use and non-threat of use of nuclear weapons but the Court majority seven cannot say that it has definitely emerged, in view of the nuclear nations repeated statements that they could use nuclear weapons lawfully. However all these nations have long upheld the various norms of non-combatant immunity, neutrality, not causing unnecessary suffering, non-use of poisonous devices, etc which the use of nuclear weapons, above all ones of 100 kilotons, would surely transgress. The question is what status is to be given to the claim of would be criminals who don’t openly say they reserve the right to break the law so long as they use x or y, but rather, against all scientific and common sense evidence, and in violation of the Public Conscience of the world community, blithely claim that using x wouldn’t necessarily break the law, there are some circumstances, which they refuse to divulge, in which they could use x without violating norms a, b, c and d to which they remain committed (and which they most certainly make a big protest about if other criminals violate them!)?
The court could also have examined whether in the intervening timespan (between the ICJ Opinion of 1996 and the LAR Opinion of 2001) the embryonic opinio juris to which the ICJ referred had crystallized into an unequivocal rule of customary law. It could, for instance, have drawn some conclusions from the “unequivocal undertaking” given by the nuclear powers, including the UK, at the end of the NPT review conference last year, “to accomplish the total abolition of their nuclear arsenals.” N11. Failure to criminalise Trident Deployment.
By rubbishing the authority of the ICJ, exaggerating the divisions on the bench, and exploiting the ICJ’s hesitancy to ‘conclude definitively’ regarding a small residual area having to do with different views held by different nations concerning mini-nuclear weapons and an extreme circumstance of self-defence, in which the very survival of a State would be at stake’, the Appeal Court claims that Trident could be used lawfully. It then claims that our case concerning Trident deployment has two fatal flaws.
At para 95 it claims that ‘the relevant rules of conventional and customary international law and in particular the rules of international humanitarian law, are not concerned with regulating the conduct of States in time of peace.’ Belligerents and neutrals (they ignore peaceful civilians world-wide) may be entitled to protection under the law of armed conflict, but only when armed conflict breaks out!! Yet the basic proposition that a threat to do something is unlawful if the doing of that thing would be unlawful was nowhere challenged – which is the obvious link between pre-armed conflict and armed conflict.
They get round this problem by claiming that routine deployment of Trident doesn’t really amount to a threat in normal times (though they usefully admit that a given disposition of Trident could amount to a threat in certain circumstances: at para 97, ‘Nemo me impune lacessit’.) But they see broadly deterrent conduct, with no specific target and no immediate demands as something quite different from a particular threat of practicable violence, made to a specific ‘target’, perhaps coupled with some specific demand or perhaps simply as the precursor of an actual attack.
Trapped within the old, traditional view of war as being merely between our own army and the enemy’s army, and therefore not anybody else’s concern (not even their own people – hence the lack of democratic accountability) they cannot see that even the most laid back deployment of Trident is saying something very terrible and obscene to the rest of the world. It is putting the peaceful people of the world on notice that, so long as the UK or another nation it defends is being attacked, the UK reserves the right to poison the world, cause genetic malformations in untold generations to come, possibly trigger nuclear winter, etc. In this sense it is an illegal deterrent threat however remote or immediate, radically different from the UK saying to the world: ‘we have guns and tanks and we will use them to defend ourselves against the military forces of any invading nation if we are attacked’.
The Scottish judges can not be allowed to negate international humanitarian law, especially the UN Charter and the Nuremberg Principles. They have given no convincing arguments at all. I think it is worth repeating our rebuttal of their position and explaining once again why the deployment of Trident by the UK is illegal and also criminal in peacetime:-
The use of Trident nuclear weapons would be illegal in armed conflict, because the explosive power of each warhead (100 kilotons, equivalent to 8 times that of the weapon which devastated Hiroshima) makes them incapable of use without violating international humanitarian law.
In its 8 July 1996 Advisory Opinion, the International Court of Justice (ICJ) concluded [para 47], “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 UN Charter is applicable at all times and thus the argument that international humanitarian law only applies in armed conflict is irrelevant with respect to threat of use. It is only applicable to use, when by definition there is a situation of armed conflict.
UK Trident is deployed under a policy of “stated readiness to use”, in order that nuclear deterrence is credible.
By definition, deployment in peacetime fails to meet the ICJ criteria of
“an extreme circumstance of self-defence, in which the very survival of a
state would be at stake”, even if the Trident warheads could be replaced by ones so small that they complied with international humanitarian law.
Nuremberg Principle VI states: “The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation… of a war… in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).”
N12. Absurd suggestion that civilians have less protection in times of peace than in times of war.
The court’s novel theory, in para 95, that humanitarian law does not apply in time of peace is not only surprising but also dangerous. Saddam Hussein will be pleased to hear that attempts to discourage him from producing weapons of mass destruction lack legal justification because he is not currently engaged in armed conflict. The obvious distinction must be drawn between those parts of humanitarian law, like the mistreatment of prisoners, which by definition apply only to the conduct of hostilities, and preparations for war, including the manufacture and deployment of illegal weapons.
Further, the Court did not refer once to the evidence brought during the LAR proceedings as to the fact that the UK has been engaged in armed conflict throughout the life of Trident Ploughshares. Evidence, from Hansard, was actually put before the three Judges during the LAR proceedings about the continuing bombardment of targets in Iraq. These bombardments are still continuing at the time of writing. N13. Failure to believe our motivation.
The Court states that “in taking the alleged criminality of the Government’s actions in relation to Trident as a cornerstone of their argument, the respondents appeared to us … to be treating the Government’s alleged criminality in this respect not merely as something which had to be established in order to succeed in the defence of necessity and justification, but as itself the primary issue, with the respondents’ actions at Loch Goil, and their subsequent trial, amounting to no more than a slightly complicated mechanism for bringing the Crown’s conduct in relation to Trident indirectly before a court, for scrutiny and, if possible, condemnation as criminal” [para 19]. However, we had made it quite clear we were not using our action in order to bring a test case. Our action was designed to disarm a part of the nuclear weapons system and our actions will continue.
CONCLUSION.
The fact that the High Court answered all four questions in the negative and was so scathing about global citizens’ rights to try to prevent the dangers and crimes associated with the use of Trident nuclear weapons means that the Scottish legal system has failed us. This will mean that there will be a continuation of the conflict of interests between the State and ordinary people. Even after our Greenock acquittal the lower courts continued to find Trident Ploughshares Pledgers guilty, so it will not lead to much change there.
We see this ruling as a perverse ruling that flies in the face of reason and humanity. A legal system can be supported by people if, and only if, it remains firmly grounded on natural justice and morality. 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.
Trident Ploughshares Pledgers act to prevent war crimes, crimes against peace and crimes against humanity. Mass murder is probably one of the most heinous wrongs known to mankind. The Trident nuclear weapon system is a conspiracy to commit mass murder.
The specious arguments of the Opinion muddy the water and attempt to put the actions of the military beyond judicial questioning. But although these Judges may have the last say on how Scottish Law is interpreted in the Courts, this is not the end of the debate. Scotland is a democracy and a democracy cannot function if Judges make a mockery of the law such that it deals with small crimes but leaves the major crimes undealt with.
People’s Disarmament will continue because murder is murder whether committed by an individual for personal motive or by a State for political motives. If Scottish Law cannot protect citizens who are acting to prevent State crime then it has failed us all and we will need to reclaim the law for ourselves and insist that it changes so that it bears some relation to the human values contained within the international humanitarian law which we still rely upon.
Decent human beings will continue to try to do all they can to prevent mass murder. Trident Ploughshares will continue.