INTRODUCTION
1.1 The present Statement of Argument on behalf of the Third Respondent is prepared having heard the Crown’s case set out by Mr. Di Rollo, Advocate, and the arguments put forward by the first respondent Ms. Zelter and by Mr. Moynihan QC, amicus curiae, in support of her submissions.
1.2 The third respondent’s submissions are predicated on the correctness of Mr. Moynihan’s analysis of the ICJ Advisory Opinion as at core declaring the unlawfulness in international law of any threat or use of high kiloton yield nuclear weapons such as the Trident warheads deployed by the United Kingdom, because of their necessarily indiscriminate effects in space and time.
1.3 The third respondent will make the following submissions on the basis:
(i) that the question of the lawfulness of the United Kingdom’s possession and deployment of Trident 2 nuclear weapons is a justiciable issue for the domestic courts, notwithstanding earlier authorities to the effect that matters concerning the defence of the realm against potential enemies and/or the disposition and armament of the armed forces cannot be challenged in the courts;
(ii) that Westminster Parliamentary material may be relevant to any assessment of the lawfulness of the exercise of discretionary powers by the Crown acting under the Royal Prerogative in these areas, notwithstanding that the existence of these powers is not dependent on any prior statutory authority. In particular, considerations of Parliamentary supremacy require that the Crown’s power should be exercised in a manner consistent with, and not in effective contravention of, any statutes.
(iii) that in any event, the courts are “State actors” from the perspective of public international law and accordingly have duties derived directly from international law to ensure so far as possible that the State does not contravene the requirements of international law. This involves the national courts in having regard to judgments and advisory opinions of the International Court of Justice and of earlier international tribunals as the Nuremberg Tribunal and apply and interpret national law within their jurisdiction in a purposive manner to ensure that the ultimate aim of respect for international law by the State is achieved.
PROPOSITION 1 – Justiciability
2.1 See Chandler v. The Director of Public Prosecutions [1964] AC 763 per Lord Reid at 791, Viscount Radcliffe at 798-799 and Lord Devlin at 811:
2.2 See Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 per Lord Roskill
2.3 See Operation Diismantle and others v. The Queen (1985)18 Dominion Law Reports 481 (4th) 481 per Madame Justice Wilson at 500, 504, 505
2.4 See too R v. Ministry of Defence, ex parte Smith and Grady, R v. Admiralty Board of the Defence Council, ex pane Lustig-Prean and Beckett [1996] QB 517
2.5 In the submission of the third respondent, the changed constitutional position wrought by the Scotland Act and the Human Rights Act which the Lord Advocate’s prosecutorial discretion is bound by the statutory requirements both to respect individual Convention rights (Section 57(2) SA) and the United Kingdom’s “international obligations” (Section 58 SA), and the courts are themselves enjoined (under Section 6 HRA) themselves to apply and to ensure that other public authorities (including the Crown) act in a manner compatible with the European Convention, has expanded the parameters of the justiciable, such as to include even matters of the defence of the realm and the disposition and armament of the armed forces where, as in the present case, fundamental rights issues are at stake.
2.6 Because they are now obliged to act as human rights courts, it is no longer open to the national courts to rely unthinkingly upon prior domestic authority regarding, for example, in setting limits upon the definition of justiciable issues in relation to Crown and Security Forces. In particular, courts acting under the aegis of human rights have already accepted the justiciability of the following matters dealing both with the internal structures of the police and security forces and in how they conduct operational matters:
(i) as regards the lawfulness of the disciplinary and court martial procedures of the Armed Forces;
(ii) in relation to the lawfulness of a ban on homosexuals serving in the Forces, rejecting the Armed Services’ attempted justification of this ban based on claims as to operational efficiency and staff morale;
(iii) in relation to the lawfulness of an exclusion of women from particular posts in the Armed Services on the basis of claims regarding “combat effectiveness”
(iv) in relation to the lawfulness of an exclusion of women from particular posts in the Armed Services on the basis of claims regarding “combat effectiveness”
(v) in relation to the use of particular interrogation techniques authorised “at the highest level” of the UK Government and used in connection with persons interned without trial in Northern Ireland
(vi) in relation to the conduct and planning of individual anti-terrorist operations by the Army on Gibraltar
(vii) in relation to allegations of a “shoot to kill” policy operated by the Security Forces in Northern Ireland;
(viii) in relation to allegations of collusion between the Security Forces and paramilitary groups in Northern Ireland;
(ix) in relation to public procurement procedures in Northern Ireland and the certification from the Secretary of State to the effect that for reasons of national security specified individuals were they were ineligible to be considered for the award of a public works contract
(x) in relation to the manner in which police investigations and operations in the suppression of crime are carried out
2.7 In summary it may be said that the question of the lawfulness of Trident under and in terms of international law is a justiciable issue par excellence. Who but the court may properly decide on question of lawfulness. This court has properly been seised of the issue by Question 2 of the Lord Advocate’s Reference and should accordingly be prepared to consider the substance of the matter.
Proposition 2 – PARLIAMENT, THE EXECUTIVE AND NUCLEAR WEAPONS
3.1 See R v. Secretary of State for the Home Department, ex parte the Fire Brigades Union and others [1995] 2 AC 513, HL
3.2 The strong thesis that the Executive is subject to the Rule of Law means that this court has to be willing to apply the requirements of the Rule of Law against Executive action, regardless of questions of realpolitik or expediency. As has been noted: “prerogative cannot mean a power above the law”.1
3.3 There is no specific statutory sanction from Parliament authorising the Executive to maintain and deploy nuclear weapon of mass and indiscriminate destruction such as Trident 2 since the disposition and armament of the Armed Forces was traditionally said to be a matter of the Royal Prerogative, exercisable by the Crown. Parliament has, however been advised that “the Government are confident that Britain’s nuclear policy and posture, as set out in the Strategic Defence Review, are entirely compatible without our obligations under international law” and that “the Law Officers take the view that the application of the Government’s nuclear deterrence policy does not involve an infringement of their domestic or international law.” 2
3.4 In contrast to the situation regarding the continued possession and deployment of the UK’s nuclear weapons, Parliament has expressly approved moves towards disarmament in a series of statutes approving and seeking to facilitate international nuclear disarmament and non-proliferation, as is seen in the Nuclear Safeguards and Electricity (Finance) Act 1978, the Arms Control and Disarmament (Privileges and Immunities) Act 1988 and the Nuclear Safeguards Act 2000.
3.5 There is also, in the Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995, evidence of further specific Parliamentary approval and adoption of the intransgressible principles of international Humanitarian law contained in or reaffirmed by the Geneva Convention of 12 August 1949 in particular the Fourth Geneva Conventions of 12 August 1949 for the Protection of War Victims; together with the two additional protocols thereto of 10 June 1977. Parliament has legislated to ensure that “grave breaches” of the Convention and its Protocols shall constitute specific offences under national law, no matter by whom they are committed. Thus, the Executive and members of the UK’s armed forces are bound in national law to respect those principles derived from customary international law. There is no legislative let-out from those principles. Insofar as the Executive acts in a manner contrary to the requirements of the Geneva Convention principles transgression of which is defined as a “grave breach” it is acting contrary to statute.
3.6 The very passing by Parliament of these Acts may itself be said “affect the mode” of exercise of the powers of the Crown acting under the Royal Prerogative in relation to the armament and deployment of the armed forces. The statutes have to be taken account of. As statements of Parliamentary intention rather than a thing “writ on water” they may properly be said to re-inforce the fundamental and intransgressible nature of the humanitarian provisions set out in the Geneva Convention and associated protocols.
3.7 It is submitted that the actions of the Executive in its maintenance in a state of readiness and deployment of Trident missiles contravenes the requirements of the Geneva Convention and its Ratified Protocols, in particular the principle of distinction between combatants and civilians and the corresponding prohibition on indiscriminate warfare which is a necessary concomitant of any use of the Trident 100kT warheads. These are not precision guided missiles with limited destruction capacity; their use necessarily involves an attack on the civilian population since they can make no distinction between persons who take part in hostilities and members of the civilian population who are to be granted maximum protection. This court should find accordingly.
3.8 If the Executive wishes to continue with its current nuclear weapons programme then it has to do on a proper lawful footing. At the very least, this will require and explicit denunciation or derogation from the Geneva Convention and its associated Protocols under international law and the passage through Parliament of an act giving effect to such denunciation or derogation in national law. As Diplock LJ observed in another context, “when the Crown has entered into a treaty the court will so far as possible construe a domestic Act in conformity with the treaty, so that the Crown in its judicial capacity does not sleep while in another capacity it watches”.3 This is not the court engaging in politics but rather simply upholding the rule of law by requiring the Executive to live up to the ideals which it itself professes, both nationally and internationally.
Proposition 3-THE RULE OF LAW IN INTERNATIONAL LAW Treaty law and customary international law compared
4.1 It is a false and potentially seriously misleading analogy, however, to think of customary international law as the common law, and Treaty law as international statutory law. The two categories of international law, customary and conventional, are permeable. Thus, a Treaty provision may come to be regarded as a material source of customary international law, binding upon parties and non-parties alike. This may occur because:
(i) the Treaty is regarded as evidencing a pre-existing customary norm which has not been constituted by, but rather was simply articulated or re-affirmed within, an international treaty; or
(ii) the Treaty provision is thought to crystallise or codify general custom as States agree on the terms of the provision to be adopted during the Treaty drafting process; or
(iii) the Treaty provision subsequently evolves into a norm of customary international law, by a combination of treaty negotiation and ratification, together with the practice of States after the Treaty’s adoption
4.2 These basic rules of customary international humanitarian law applicable in armed conflict include the following:
(i) that the belligerent parties do not have an unlimited choice of means of warfare (Article 35(1) of Protocol I to the Geneva Convention);
(ii) there is an obligation to distinguish between civilian population and combatants and civilians should not be the subject of direct attacks; (Articles 48, 50 and 52 of Protocol I to the Geneva Convention)
(iii) there is a prohibition on unnecessary killings and devastation and on the causing of unnecessary suffering; (Article 35(2) of Protocol Ito the Geneva Convention)
(iv) the work of medical personnel should be respected (Article 16 of Protocol I to the Geneva Convention);
(v) there is a prohibition on inflicting any lasting and severe damage to the environment. (Article 55 of Protocol I to the Geneva Convention)
4.3 Perhaps more controversially, a norm of customary international law may also come to be regarded as still applicable to States even in the face of inconsistent international Treaty provisions. The International Court has stated that “there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter ’supervenes’ the former, so that the customary international law has no further existence of its own”.4 In any event the “Martens clause” from the 1899 Hague Convention, subsequently restated in Article 1(2) of Protocol I to the Geneva Convention, provides that, apart from international agreements, both civilians and combatants remains under the protection “of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”. Customary law and contrary practice 4.4 Clearly, once a norm has become incorporated into customary international law, it will not cease to be a binding norm simply because breached or repudiated by a State or international legal actor. For the customary norm to cease to be a binding legal obligation under international law there has to grow up a contrary custom or international practice accepted within (or acquiesced in by) the rest of the international legal community that the action in breach of custom is not to be regarded as illegal. As the International Court of Justice observed in its judgments on the merits in Nicaragua v. US: “The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or any unprecedented exception to the principle might, if shared in principle by other States, tend toward the modification of customary international law. In fact, however, the Court finds that States have not justified their conduct by reference to a new right of intervention or to a new exception in principle to its prohibition. The United States authorities have on some occasions clearly stated their ground for intervening in the affairs of a foreign State connected with, for example, the domestic policies of that country, its ideology, the level of armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.” 5
Jus cogens and intransgressible principles
4.5 Further certain principles of customary international law, particularly in the field of human rights protection, may become part of the peremptory norms of the jus cogens (that is to say a rule from which no derogation is permissible) or may form one of the “fundamental rules [which] are to be observed by all States … because they constitute intransgressible principles of international customary law” 6 such that any international agreement which purports to violate them is void as a matter of international law. These include: any treaty contemplating an unlawful use of force contrary to the principles of the UN Charter and any treaty contemplating the performance of any other act criminal under international law. 7 As the International Law Commission has observed:
“the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule of international law having the character of jus cogens” 8
4.6 Further examples of intransgressible norms are set out in the Geneva Conventions which by characterising violations of certain norms as “grave breaches” the Convention provides that no party shall be allowed to absolve itself or any other party of liability incurred in respect of such violation.9 For example Article 85(3) of Protocol I to the Geneva Convention includes among “grave breaches” the following acts, when “committed wilfully, in violation of the relevant provisions of this Protocol and causing death or serious injury to body or health:
(a) making the civilian population or individual civilians the object of attack;
(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damages to civilian objects, as defined in Article 57, paragraph (2)(a)(iii);
(c) launching an attack against works or installation containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph (2XaXiii)” The inter-penetration of national and international law – judges as “State actors” 4.7 Because we are dealing with legal norms, it is the duty of all courts to ensure so far as within their legal jurisdiction, that those norms are duly respected by those properly bound by them. The fact that these norms are derived from customary international law (or specifically incorporated Convention law) does not lessen their binding force or the duty of national courts, in accordance with the requirements of the rule of law, to ensure respect by other State authorities for their legal commitments.
4.8 From the perspective of international law this duty may be expressed in the doctrine of the national courts as “State actors”; from the perspective of the domestic courts themselves it is more simply expressed as the duty to ensure respect by the national Executive and legislature for the Rule of Law. As Lord Hoffman noted in Montgomery v. HM Advocate in the context of the protection of the rights granted under the European Convention:
“[T]he European Court [of Human Rights] administering the [European] Convention as an international treaty adjudicates upon the obligations which it imposes upon the member States as States. It is not, however, concerned to distinguish, from the point of view of the imposition of the obligation, between the various organs of the State. The question is whether a Convention right has been infringed by the State, and it does not matter whether this is attributable to the acts or omissions of the executive, legislative or judicial branches of government.” 10
4.9 Similarly, Professor Rosalyn Higgins QC, now a judge of the International Court of Justice, has written as follows:
“The international responsibility of a State is engaged when it violates international law, with various possible consequences. And from the perspective of international law, ’the State’ encompasses all the organs of the State, the judiciary as well as the executive and legislative. The responsibility of the State is incurred by the acts and decisions of the judiciary, notwithstanding the proper separation, in a democracy, of the judiciary from other State organs.”11
4.10 The implication of this doctrine (domestic courts as “State actors”, or courts bound to uphold the Rule of Law) have, to date, been more fully developed in two particular systems of international law applicable to the UK: namely European Community law and European Convention law. In both of these systems the Rule of Law has been invoked by an international court as the basis for imposing certain duties on national courts vis a vis the authorities of the State within their territorial jurisdiction. Each of these invocations of the requirements of the Rule of Law have been made in the context of claims as to the duties of courts to carry out their function of judicial review to ensure that State authorities carry out their functions lawfully and within the limits of the powers properly accorded to them. These interpretative obligations, arising directly from the requirements of international law, have been acknowledged by the domestic courts of the UK in both Community law 12 and European Convention law. 13
4.11 The Nuremberg Jurists trial 14 is another example to of how judges and those involved in the legal system are regarded for the purposes of international law as responsible for breaches by the State apparatus of the requirements of international law, notwithstanding the demands of domestic law. The ICJ on deployment and threat to use 4.12 Article 2(4) of the United Nations Charter provides that:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” 4.13 In Paragraph 5 of their Statement of Argument, the Crown makes the following claim:
“The United Kingdom has not at any time made a threat to use nuclear weapons”.
4.14 This claim is one which is contested by the respondents as a matter of fact, and Mr. Moynihan has made reference to a number of passages in the evidence before the Sheriff which seems to indicate veiled official threats relating to the potential use of the UK nuclear weapons.
4.15 The Crown state that their claim is one founded on a matter of law, namely the definition of “threat” in public international law, and rely in this regard on a passage in Brownlie’s International Law and the Use of Force by States (at 364) to the effect that “a threat of force consist in an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government”. This passage written in 1963 does not directly address the question of the active deployment of indiscriminate nuclear weapons of mass destruction, however, and long pre-dates the decision of the Advisory Opinion of the ICJ, which addresses the question of the threat of use at paragraphs 47 to 48 of its judgment as follows:
“47. In order to lessen or eliminate the risk of an unlawful attack, states sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence. Whether such a signalled intention to use force if certain events occur is or is not a ’threat’ within Article 2 paragraph 4 of the Charter depends upon various factors. If the envjsaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not to follow certain political or economic paths. The notions of ’threat’ and ’use’ of force under Article 2 paragraph 4 of the Charter stands together in the sense that if the use of force itself in a given case is illegal –for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State – whether or not it defended the policy of deterrence – suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. 48. Some States put forward the argument that possession of nuclear weapons is itself an unlawful treat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a ’threat’ contrary to Article 2 paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the purposes of the United Nations, or whether, in the event that it were intended as a means of defence, it 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.” 15
4.16 In relation to the first matter, the third respondent notes that, quite apart from claims that the UK has on recent occasions specifically threatened “rogue States” with the possible use of nuclear weapons, its current policy is one of a “stated readiness to use” nuclear weapons in certain circumstances. And as Judge Schwebel notes in this dissenting opinion in the ICJ judgment:
“Not only have the nuclear Powers avowedly and for decades, with vast effort and expense, manufactured, maintained and deployed nuclear weapons, they have affirmed that they are legally entitled to use nuclear weapons and to threaten their use. They have threatened their use 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.” 16
4.17 Further and in any event, NATO has stated that an essential role in the strategy of the Alliance is “to prevent war by ensuring that under no circumstances can the possibility of nuclear retaliation in response to military action be discounted”. 17 They have also claimed that: ’nuclear weapons make a unique contribution in rendering the risks of any aggression incalculable and unacceptable” 18 and that “they demonstrate that aggression of any kind is not a rational option” 19
4.18 In the view of the ICJ, such stated readiness to use these weapons by the UK may properly be considered to be a threat to use them. From the terms of the ICJ judgment it is clear that the presumption must be that such a threatened use of force will be illegal unless it can be shown to be in conformity with the UN Charter. That is to say:
it must not be aimed toward an unlawful end, such as intended to cause another State to follow, or not to follow, certain political or economic paths;
insofar as intended as a matter of defence, it must required as a matter of necessity, that is to say that the response to an armed attack requires nuclear counter-force and that there are no less destructive forms of effective defence available to the UK; and
the envisaged defensive use must also conform to the principle of proportionality, that is to say that any such use even in the “extreme circumstance of self-defence, in which the very survival of a State would be at stake”, will be one which demonstrates a respect for the intransgressible requirements of humanitarian law, and, in particular, the distinction to be maintained at all times of discrimination between civilian and military targets and the avoidance of unnecessary suffering to combatants. The cost in terms of overall suffering and loss of civilian lives should not outweigh the achievement of otherwise legitimate military goals, namely the repulsion of the armed attack on the State. 20
4.19 In contrast to the ICJ which in its Advisory Opinion was asked to pronounce on the legality or otherwise of all and any conceivable uses of actual and potential nuclear weapons and concluded in Dispositif E(2) that on the elements of fact at its disposal it could not reach a definitive conclusion as to lawfulness or otherwise of the threat or use of any nuclear weapons “in the extreme case of self-defence, in which the very survival of the State was at stake” the present course is faced with a particular factual scenario involving the threat to use specific nuclear weapons by one particular State.
4.20 In the case of the United Kingdom, we have a policy of active deployment of Trident 2 nuclear missiles multiple carrying 100kT warheads, each one some eight times the size of the Hiroshima bombs, with a declared readiness to use these “to deter any threat to our vital interests” 21 in a manner such as to render the possibility of aggression by an enemy not a “rational option” because the risk of nuclear retaliation with these weapons is “incalculable and unacceptable”. The United Kingdom has refused to offer a declaration of “no first use” in relation to its nuclear arsenal.22 Its policy statements make no limitation of use only in territorial self-defence and in accordance with the requirements of proportionality.
4.21 In these circumstances, given that the United Kingdom Executive’s statements of policy has failed expressly to make reference to any of the limitations imposed by respect for the humanitarian norms of customary international law, the UK Government would appear to be seeking to reserve to itself the possibility of making unlawful use of these weapons. Such reservation, in the context of active deployment and constant readiness for use of weapons of the scale of Trident 2, must mean that the implicit threat to use these weapons is itself unlawful. On the basis of these elements of fact at the disposal of this court, it is submitted that the necessary legal conclusion of law that this court must reach is that the UK’s current policies in relation to the deployment and maintenance for immediate use of Trident 2 missiles is an unlawful threat to use force, contrary to the requirements of customary international law. This conclusion may be reached:
either because as a matter of fact given the size of these weapons,no conceivable use of 100kT warheads could be said to be proportionate, humane and discriminate or
because the United Kingdom has refused publicly to limit itself only to use in circumstances where these requirements, and thereby implicitly continues to threaten to use these weapons even where their use would be disproportionate, inhumane or indiscriminate.
THE DUTIES OF INDIVIDUALS IN THE FACE OF ILLEGAL ACTION BY THE STATE The Nuremberg Principles 5.1 In the immediate post-War period, various cases were brought in Germany before their domestic courts against private persons who had informed on or denounced relatives and colleagues to the Nazi authorities for political offences. As a result of these denunciations those informed against were handed over to a judicial system, in particular the Nazi People’s Courts “which dealt mercilessly with political opponents at that time, as the population was well aware”. Thus a woman who, with a view to effecting a swift end to her marriage, denounced her husband to the authorities for slandering Hitler which resulted in his imprisonment and sentence of death later commuted to service on the Eastern Front, was convicted in the post-War period by national courts of wrong-doing for relying in bad faith on unjust laws of the Nazi system. 23 This case (and similar contemporaneous cases 24 ) makes it clear, then, that private individuals may be said to have duties derived from principles of humanitarian law found in international law such as to bind them to respect those principles even against the claims of national law.
5.2 This case may be said to be an example of the application (and extension to conduct other than crimes against peace, war crime or crimes against humanity defined in Principle VI of the Nuremberg Principles) in a purely domestic sphere of Principles I and II of the Nuremberg Principles which affirms the existence of legal responsibilities even on private individuals who are not directly part of the official State apparatus,25 as follows:
– Any person who commits or is an accomplice in the commission of an act which constitutes a crime under international law is responsible therefor and liable to punishment26 – The that domestic law does not impose a penalty to an act which constitutes a crime under international law does not free the person who committed the act from responsibility under international law
5.3 The Westminster Parliament was advised in 1963 by the then Lord Chancellor that the United Kingdom took the view that the Nuremberg Principles, as formulated by the International Law Commission, 27 were “generally accepted among States and have the status of customary international law”. 28 There is not then any conflict between the “law of the land” and any “moral imperative”, 29 since the law of the land as given effect to by the courts clearly incorporates the Nuremberg principles both as a matter of customary international law and through the terms of Article 7 of the European Convention (one of the specified Convention rights under the Human Rights Act) which is in the following terms:
“(1) No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute an offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed that the one which was applicable at the time when the criminal offence was committed.
(2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations.”
5.4 Article 7 of the European Convention was intended to take account of the existence of the jurisprudence concerning “crimes against humanity” as this concept was first articulated at the post-War Nuremberg trials. In particular, the claim that there is a higher normative authority to be given to principles derived from international Humanitarian law even as against the requirements of national law which was specifically incorporated into the European Convention on Human Rights. In defining Article 7 of the Convention as one of the “Convention rights”, the Human Rights Act effectively introduces Nuremberg derived principles regarding the justifiability of conduct under national and international law.
5.5 In interpreting and applying Article 7 of the European Convention, (that is to say in determining when and how an individual should properly be found guilty of a criminal offence) the domestic courts have to take account of the “general principles of law recognised by civilised nations”, that it so say the requirements of customary international Humanitarian law.
5.6 Thus, given that the current UK deployment and threat to use nuclear weapons can indeed be said to be contrary to the general principles of law recognised by civilised nations, as articulated by the International Court of Justice, then this matter is caught by and may be characterised as criminal under and in terms of Article 7(2). Accordingly any attempt to criminalise the conduct of the respondents in seeking to prevent such official criminal action would itself contravene their Article 7(1) rights since what they were doing could not be said to constitute an offence, but was instead justifiable, under international law.
5.7 Alternatively, the compatibility of domestic law with the requirements of international law may be effected by the courts in Scotland expressly recognising the possibility of a “law enforcement motivation” defence within the common law doctrine of necessity, in which by way of defence to a prosecution for having done a prohibited act with the requisite mens rea, the accused claims that the purpose of his action was in fact to bring a wrong-doer to justice or to expose wrong-doing and that he was in fact exercising the power possessed by every citizen at common law to take reasonable action to prevent reasonably apprehended breaches of the law by another and thereby to keep the peace within the realm.
5.8 Thus in R v. Fitzroy Derek Pommel 30 the defendant’s answer to charges of possessing a prohibited firearm and ammunition without a licence (in fact a loaded sub-machine gun) was that he had taken them from another man who was intending to commit a crime with them and intended to pass them on to his brother for surrender to the police. The Court of Appeal held that if these facts could be established, a defence should be available to the accused, termed by the court “duress of circumstances”. Thus, it was said to be necessary for the court to decide whether or not the defendant had acted as he did because he reasonably believed that death or grievous bodily harm might be caused to someone and, relying on the earlier decision in R v. Marlin 31 whether a person of reasonable firmness would have reacted similarly in the situation.
5.9 The respondents in the present Lord Advocate’s Reference case might be said to present the reverse image of the case of the denouncing wife in Nazi controlled Germany, in that in good faith they have sought to carry out law enforcement action in accordance with the requirements of international law. Thus if the denouncing wife can subsequently be convicted of wrongdoing in the first case (because although was she did was lawful and correct under the domestic law of the time, it was contrary to the international requirements of justice), it may be said that the respondents were properly acquitted of wrong-doing by the national court since what they did was right because for the avowed purpose of securing State compliance with the demands of international Humanitarian law.
5.10 There is little past authority on this point. We are, in this intersection of public international law, constitutional law, humanitarian or human rights law and criminal law, in a new area. It is suggested that the courts might usefully adapt the classic tri-partite proportionality test known in European law (and which was originally developed in Germany to test the lawfulness of police action) to set out the conditions for any possible “citizen intervention necessity” defence such that it will be available only in circumstances where it can be said that:
(i) the action of the State against which it is aimed is in fact illegal, whether under domestic or applicable international law;
(ii) the action is necessary in the senses that there was no legal reasonable alternative is in fact available to the actor (for example because the relevant authorities have refused or refrained from enforcing the law in relation to the illegal act)
(iii) the actor could reasonably expect that the actions taken would be effective in impeding the illegal act;
(iv) the actions are marked by a “fidelity to legal values”, that is to say that it is proportionate, involves no possibility of harm to individuals and no attempt is made to avoid detection in the doing of the act
5.11 Clearly there will be no possibility of relying on such a defence where the State action complained of is not in fact illegal or that the action was unnecessary (in the sense that reasonable alternatives were open) or that it could not have been reasonably be expected that it would impede the commission of the unlawful act, or that the action was not one which was characterised by fidelity to legal values because t was done clandestinely with a view to escaping detection or because the action was disproportionate in the sense that its evil or undesirable effects (for example in resulting in physical harm to individuals) outweighed the evil that it was seeking to prevent
SUMMARY
Question 1 6.1 The third respondent does not submit any additional independent authority on this point, but respectfully adopts the approach taken by Ms. Zelter and by Mr. Moynihan’s. She accordingly submits that this question should be answered in the affirmative: that is to say that (contrary to the contention of the Crown to the effect that matters of customary international law can only be put before the court for it to establish on the basis of the submissions of counsel, relying on relevant court decisions and text-books, but not from the direct oral testimony of any of the authors of such text-book) the practice in Scotland should follow that noted in the Canadian and US jurisdictions so as to allow such oral evidence in the discretion of the court if the court thinks it relevant and of assistance in allowing it to determine the legal points raised before it, rather than that the court be barred from hearing any such evidence as a matter of competency. Question 2
6.2 The third respondent submits that this question should also be answered in the affirmative, making explicit reference to the illegality of Trident under international law and the role of the individuals in conscientiously and in good faith carrying out law-enforcement actions to remedy that illegality. Question 3
6.3 The court should refuse to answer this question on the grounds that it is not properly raised within the present Lord Advocates Reference since it is not focussed on the issues raised in the trial and is wholly inspecific. Should it wish to answer the question the court should, however, have regard to the decision of the English Court of Appeal in Percy v. Hall32 where it was held (in an action for wrongful arrest and false imprisonment brought by a peace activist who had been arrested by the police on numerous occasions for breaching bye-laws which were subsequently found to have been invalid) that the existence of even invalid bye-laws could properly be relied upon by the public authority by way of defence to the action insofar as they could show that they had been acting on the reasonable belief that they were valid at the time of the arrests. That is to say that reasonable belief as to legal validity of one’s action was held to constitute a defence against a civil claim to unlawful actings. Question 4 6.4 The court should refuse to answer this question on the grounds that it is not focussed on the issues raised in the trial and is wholly inspecific, in particular with reference to the phrase “general defence”.
14 November 2000 JOHN McLAUGHLIN, Advocate
Advocates Library
Parliament House
Edinburgh EH1 IRF, AIDAN O’NEILL QC
NOTES 1 J.D.B. Mitchell Constititional Law (1968) at 174 [Reproduced as Roder Bundle II-bb] 2 See the Parliamentary Written Answers of 13 December 1999 from the Solicitor General of England and Wales on nuclear deterrence policy contained in Zelter Reference 41 3 Saloman v. Commissioners of Customs and Excise [1967] 2 QB 116 per Diplock LJ at 132D-E 4 See ICJ judgement in the Nicaragua v. US (Merits) ICJ Reports 1986 p. 14 at paragraph 177 5 ICJ judgements in the Nicaragua v. US (Merits) ICJ Reports 1986 p. 14 at paragraph 208 6 See the ICJ Advisory Opinion at paragraph 79 and the separate declaration of President Bedjaoui at paragraph 21 7 See the discussion of the characteristics of the jus cogens in relation to the prohibition of torture contained in the judgment of Lord Browne-Wilkinson in R v. Bow Street Magistrates, ex parte Pinochet (No. 3) [1999] 2 WLR 827 at 841 8 See YBILC 1966 II at page 246 on the codification of the law of treaties. See the approval of this characterisation by the ICJ in its judgment in the Nicaragua v. US (Merits) ICJ Reports 1986 p. 14 at paragraph 190 where it found that the international law prohibition on the use of force between States constituted “a conspicuous example of a rule of international law having the character of the jus cogens” 9 This provision as regards “grave breaches” is specifically incorporated into domestic law by Section 1 of the Geneva Conventions Act 1957 as amended by Section 1 of the Geneva Conventions (Amendment) Act 1995. 10 Montgomry v. HM Advocate, unreported decision of the Judicial Committee of the Privy Council, 19 October 2000 per Lord Hoffman at paragraph 4 of his judgment 11 R. Higgins “The Relationship between International and Regional Humanitarian law and Domestic Law” (1992) 18 CLB 1268 at 1268. 12 See Garland v British Rail Engineering [1983] 2 AC 751 [[1982] 2 All ER 402 reproduced in Roder Bundle IIix] per Lord Diplock observed at 771 A-B. See too Litster v Forth Dry Dock Co. Ltd 1989 SC (HL) 96 per Lord Oliver of Aylmerton noted as follows at 108, 120 13 T, Petitioner 1997 SLT 724, 1H at 734:
“When legislation is found to be ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the [European] Convention, Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it.
See, more recently, MacDonald v. MOD [2000] IRLR 748, EAT 14“Case 3″ or United States v. Altstötter and others reported in Trials of War Criminals before the Nuremberg Military Tribunals (Washington DC: US Government Printing Office, 1951)111 (Zelter Bundle) 15 The 1996 ICJ Advisory Opinion on the Legality of the Threat or use of Nuclear Weapons is reproduced as Roder Bundle II-FF 16 Reproduced in Zelter Materials Reference 28, paragraph 6 17 London Declaration on a Transformed North Atlantic Alliance, issued by the heads of State and Government participating in the meeting of the North Atlantic Council in London 5-6 July 1990, published in NA TO Review No. 4 (August 1990)32-3 [Zelter Reference 16] 18 See The Alliance’s Strategic Concept approved by the heads of State and Government participating in the meeting of the North Atlantic Council in Washington DC on 23-24 April (available at www.nato.int/docu.pr at paragraph 46 [Zelter Reference 17/18]. 19 See The Alliance ’s Strategic Concept approved by the heads of State and Government participating in the meeting of the North Atlantic Council in Washington DC on 23-24 April (available at www.nato.intldocu.pr at paragraph 62 [Zelter Reference 17/18] 20 See Dispositif D of the ICJ Advisory Opinion: “A threat or use of nuclear weapons should also be compatible with the requirements of international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.” 21 See The UK Strategic Defence Review of July 1998 at paragraph 60 [Roder Bundle I-B] 22 The closest that the UK has come to this is the Negative Security Assurance set out at paragraph 31 of the MOD Essay on Deterrence, Arms Control and Proliferation [Zelter Materials Reference 26] where it is stated as follows:
“Britain has repeatedly made it clear that we will not use nuclear weapons against a nonnuclear state not in material breach of its nuclear non-proliferation obligations, unless it attacks us, our Allies or a State to which we have a security commitment, in association or alliance with a nuclear weapon State. Britain has also undertaken to seek immediate UN Security Council action to assist any non-nuclear weapons state party to the Non-Proliferation Treaty that is attacked or threatened with nuclear weapons. In addition, we would be prepared to take appropriate measures in response to a request from the victim for technical, medical, scientific or humanitarian assistance.” 23 See Case Note in (1951) 64 Harvard Law Review 1005-1007. See, too, the commentary on this and similar cases in H. 0. Pappe “On the validity of Judicial Decisions in the Nazi Era” (1960) 23 Modern Law Review 260-274 24 See The decision of the Appeals Chamber of the post-1991 Yugoslav War Crimes Tribunal in Prosecutor v. Dusko Tadic, unreported decision of 15 July 1999 reproduced as Zelter Reference 69 at paragraphs 255-270 for discussion of this case law in the context of finding that customary international law does not contain any requirement to the that crimes against humanity may not be committed from purely personal motives, such as revenge or personal gain. 25 See, too, the Zyklon B Case decision of the British Military Court of March 1946 (reproduced in Zelter Materials Reference 61) where the commentary at 1498 notes:
“The decision of the Military Court in the present case 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 state and other public authority, but to anybody who is in a position to assist in their violation
The activities with which the accused in the present case were charged were commercial transactions conducted by civilians. The Military Court acted on the principle that any civilian who is an accessory to a violation of the laws and customs of war is himself also liable as a war criminal” 26 Nuremberg Principle VI includes among its definition of crimes under international law, “crimes against peace” which is said to involve the Planning, preparation or waging of … a war in violation if international treaties agreements or assurances” and includes “participation in a common plan or conspiracy for the accomplishment of any of the[se] acts”. And Nuremberg Principle VII provides that “complicity in the commission of a crime against peace … as set forth in Principle VI is a crime under international law”. 27 Printed in YBILC 1950 II page 195 [Roder Bundle I-E and Roder Bundle II-jj] 28 Hansard HL Volume 253, column 831, 2 December 1963 [Reproduced as Zelter Reference 62]; BPIL 1963, page 212 29See Francome v. Mirror Group of Newspapers Ltd [1984] All ER 415 per Sir John Donaldson MR at 412h-413b:
Parliamentary democracy as we know it is based on the rule of law. That requires all citizens to obey the law unless and until it can be changed by due process. … The right to disobey the law is not obtainable by the payment of a penalty or licence fee. It is not obtainable at all in a parliamentary democracy, although different considerations arise under a totalitarian regime.
In saying this, I nevertheless recognise that, in very rare circumstances, a situation can arise in which the citizen is faced with a conflict between what is, in effect, two inconsistent laws. The first law is the law of the land. The second is a moral imperative … Yielding to the moral imperative does not excuse a breach of the law of the land, but it is understandable and in some circumstances may even be praiseworthy.” Per Fox LJ at 415h-j
“The proposition that citizens are free to commit a criminal offence if they have formed the view that it will further what they believe to be the public interest is quite baseless in our law and inimical to parliamentary authority. I do not disregard the existence of what is called the moral imperative. But such cases are rare in the extreme.” 30 R v. Fitzroy Derek Pommel [1995] 2 Cr. App. R. 607 31 Rv Martin (1989) 88 Cr. App R 343 32 Percy v. Hall [1997] QB 924,CA