Transcript of Day Two Tuesday, 10th October, 2000

TUESDAY, 10th OCTOBER, 2000

MR. DI ROLLO: My Lord continuing with the ICJ, I had reached paragraph 64 at page 21, “The Court will now turn to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows from that source of law. As the Court has stated, the substance of that law must be ’looked for primarily in the actual practice and opinio juris of States.’ States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilisation of nuclear weapons by States since 1945 and they would see in that practice the expression an opinio juris on the part of those who possess such weapons. Some other States, which assert the legality of the threat and use of nuclear weapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument. They recall that they have always, in concert with certain other States, reserved the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening their vital security interests. In their view, if nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen.

The Court does not intend to pronounce here upon the practice known as the ’policy of deterrence’. It notes that it is a fact that a number of States adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, the Members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris.

According to certain States, the important series of General Assembly Resolutions, beginning with Resolution 1653(XVI) of 24 November, 1961, that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons, signify the existence of a rule of international customary law which prohibits recourse to those weapons. According to other States, however, the resolutions in question have no binding character on their own account and are not declaratory of any customary rule of prohibition of nuclear weapons; some of these States have also pointed out that this series of resolutions not only did not meet with the approval of all of the nuclear weapon States but of many other States as well. States which consider that the use of nuclear weapons is illegal indicate that those resolutions did not claim to create any new rules, but were confined to a confirmation of customary law relating to the prohibition of means of methods of warfare which, by their use, overstepped the bounds of what is permissible in the conduct of hostilities. In their view, the resolutions in question did no more than apply to nuclear weapons the existing rules of international law applicable in armed conflict; they were no more than the ’envelope’ or instrumentum containing certain pre-existing customary rules of international law. For those States it is accordingly of little importance that the instrumentum should have occasioned negative votes, which cannot have the effect of obliterating those customary rules which have been confirmed by treaty law.

The Court notes that the General Assembly Resolutions, even if they are not binding” and my Lords they are binding, “may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly Resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule. Examined in their totality, the General Assembly Resolutions put before the Court declare that the use of nuclear weapons would be ’a direct violation of the Charter of the United Nations’, and in certain formulations that such use ’should be prohibited’.

The focus of these resolutions has sometimes shifted to diverse related matters; however, several of the resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they will fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons.

The Court further notes that the first of the resolutions of the General Assembly expressly proclaiming the illegality of the use of nuclear weapons, Resolution 1653(XVI) of 24 November, 1961 (mentioned in subsequent resolutions), after referring to certain international declarations and binding agreements, from the Declaration of St. Petersburg of 1868 to the Geneva Protocol of 1925, proceeded to qualify the legal nature of nuclear weapons, determine their effects, and apply general rules of customary international law to nuclear weapons in particular.

That application by the General Assembly of general rules of customary law to the particular case of nuclear weapons indicates that, in its view, there was no specific rule of customary law which prohibited the use of nuclear weapons; if such a rule had existed, the General Assembly could simply have referred to it and would not have needed to undertake such an exercise of legal qualification.

Having said this, the Court points out that the adoption each year by the General Assembly, by a large majority, of resolutions recalling the content of Resolution 1653(XVI) and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance, reveals the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament.

The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand and the still strong adherence to the practice or deterrence on the other. The Court not having found a conventional rule of general scope, nor a customary rule specifically proscribing the threat or use of nuclear weapons per se, it will now deal with the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality.

A large number of customary rules have been developed by the practice of States and are an integral part of the international law relevant to the question posed. The ’laws and customs of war’ – as they were traditionally called – were the subject of efforts at codification undertaken in The Hague (including the Conventions of 1899 and 1907), and were based partly upon the St. Petersburg Declaration of 1868 as well as the results of the Brussels Conference of 1874. This ’Hague Law’ and, more particularly, the Regulations respecting the laws and customs of war on land, fixed the rights and duties of belligerents in their conduct of operations and limited the choice of methods and means of injuring the enemy in an international armed conflict. One should add to this the ’Geneva Law’ (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims of war and aims to provide safeguards for disabled armed forces personnel and persons not taking part in the hostilities. These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Additional Protocol of 1977 give expression and attest to the unity and complexity of that law.”

LORD PROSSER: Sorry to interrupt, I think I should know the answer to the question and I don’t. Some phraseology here seems to me to echo the French text, rather than the English text. Can you tell me this particular opinion is that issued in English, is that the ruling text?

MR. MOYNIHAN: My Lord, I can answer that, there is both English and French text, I will check in a moment which of the two is the ruling one, I have got the book which indicates which the original was and which was the translation.

LORD PROSSER: If you want to leave it at this stage. In fact I have got it, if you look at the last page it says “Done in English and in French, the English text being authoritative”, that is at page 31, right, so English is the authoritative text, right.

MR. DI ROLLO: I’m obliged my Lord. “Since the turn of the century, the appearance of new means of combat has – without calling into question the longstanding principles and rules of international law – rendered necessary some specific prohibitions of the use of certain weapons, such as explosive projectiles under 400 grams, dumb-dumb bullets and asphyxiating gases. Chemical and bacteriological weapons were then prohibited by the 1925 Geneva Protocol. More recently, the use of weapons produced ’non-detectable fragments’, of other types of ’mines, booby traps and other devices’, and of ’incendiary weapons’, was either prohibited or limited, depending on the case, by the Convention on 10 October, 1980 on Prohibitions or Restrictions on the Use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects. The provisions of the Convention on ’mines, booby traps and other devices’ have just been amended, on 3 May 1996, and now regulate in greater detail, for example, the use of anti-personnel land mines.

All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because ’the right of belligerents to adopt means of injuring the enemy is not unlimited’ as stated in Article 22 of the 1907 Hague Regulations to the laws and customs of war on land.

The St. Petersburg Declaration had already condemned the use of weapons ’which uselessly aggravate the suffering of disabled men or make their death inevitable.’ The aforementioned Regulations relating to the laws and customs of war on the land, annexed to the Hague Convention IV of 1907, prohibit the use of ’arms, projectiles, or material calculated to cause unnecessary suffering’.

The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and the civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequentially never use weapons that are incapable of distinguishing between civilian and military targets.

According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use. The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the laws and customs of war on land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology.

A modern version of that clause is to be found in Article 1, paragraph 2 of Additional Protocol I of 1977, which reads as follows: ’in cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’

In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law. It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ’elementary considerations of humanity’ as the Court put in its Judgment of 9 April 1949 in the Corfu Channel case that the Hague and Geneva Conventions have enjoyed a broad accessation. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressable principles of international customary law.

The Nuremberg International Military Tribunal had already found in 1945 that the humanitarian rules included in the Regulations annexed to the Hague Convention IV of 1907 were recognised by all civilised nations and were regarded as being declaratory of the laws and customs of war’. The Report of the Secretary General pursuant to Paragraph 2 of Security Council Resolution 808 with which he introduced the Statute of the International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and which was unanimously approved by the Security Council stated: ’In the view of the Secretary General, the application of the principle nullem crimen fine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law. The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: The Geneva Convention of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) respecting the laws and customs of war on land and the Regulations annexed thereto 18 October 1907; the Convention on the Prevention and Punishment of The Crime of Genocide 9 December 1948; and the Charter of the International Military Tribunal of 8 August, 1945″.’”

LORD PROSSER: That is the Nuremberg one?

MR. DI ROLLO: I think so my Lord. “The extensive code of humanitarian law and the extent of the accession to the resultant treaties, as well as the fact that the denunciation clauses that exist in the codification instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognised humanitarian principles. These rules indicate the normal conduct and behaviour expected of States.

It has been maintained in these proceedings that these principles and rules of humanitarian law are part of jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties of 23 May 1969. The question whether a norm is part of jus cogens relates to the legal character of the norm. The request addressed to the Court of the General Assembly raises the question of the applicability of the principles and rules of humanitarian law in cases of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons. But it does not raise the question of the character of the humanitarian law which would apply to the use of nuclear weapons. There is, therefore, no need for the Court to pronounce on this matter.

Nor is there any need for the Court” I think that should be “to elaborate on the question of the applicability of Additional Protocol I of 1977 to nuclear weapons. It need only observe that while, at the Diplomatic Conference of 1974 to 1977, there was no substantive debate on the nuclear issue and no specific solution concerning this question was put forward, Additional Protocol I in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular, the Court recalls that all the States are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first Article of Additional Protocol I. The fact that certain types of weapons were not specifically dealt with by the 1974 to 1977 Conference does not permit the drawing of any legal conclusions relating t the substantive issues which the use of such weapons would raise.

Turning now to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons, the Court notes that doubts in this respect have sometimes been voiced on the ground that these principles and rules had evolved prior to the invention of nuclear weapons and that the Conferences of Geneva of 1947 and 1974 to 1977 which respectively adopted the four Geneva Conventions of 1949 and the two Additional Protocols thereto did not deal with nuclear weapons specifically. Such views, however, are only held by a small minority. In the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons. The Court shares that view. Indeed, nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and 1974 to 1977 left these weapons aside, and there is a qualititative as well as quantitative difference between nuclear weapons and all conventional arms.

However, it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.

In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law: ’in general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other weapons. International humanitarian law has evolved to meet contemporary circumstances, and is not limited in its application to weaponry or an earlier time. The fundamental principles of this law endure: to mitigate and circumscribe the cruelty of war for humanitarian reasons.’” and that is a written statement.

LORD PROSSER: A written statement submitted to the Court on the matter.

MR. DI ROLLO: That’s correct, I think all the countries in the list, all of them submitted written statements and these are statements from this. “None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse: it has been explicitly stated, ’restrictions set by the rules applicable to armed conflict in respect of means and methods of warfare definitely also extent to nuclear weapons.’” and that is the Russian Federation.

“’So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello. The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons – just as it governs the use of conventional weapons.’” and that is the United States.

“Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons. The Court will now turn to the principle neutrality which was raised by several States.”

LORD PROSSER: Before you move to that section, quite a bit of that preceding run of paragraphs seems to relate to rules that apply to belligerents and I don’t know it may be once something is actually used you would almost definitely, almost automatically be a belligerent, but what about the threat used at a stage where a party could not be described as a belligerent, is that covered, or not. In other words does the drawback from use to threat cover the situation where the threat is, before one becomes a belligerent. I don’t recall it being touched on here.

MR. DI ROLLO: My Lord the section is introduced by Paragraph 74.

LORD PROSSER: Yes.

MR. DI ROLLO: That is the introduction and “It will now deal with the question whether recourse to nuclear weapons must be considered as illegal.”

LORD PROSSER: Yes, the international humanitarian law applicable in armed conflict. It may be clearer once you have been through the passage in its entirety. I don’t recall that being discussed, it may raise a relevant issue if there was a rule that relates to use between belligerents. It is a question how that could be applied to a threat when one is not a belligerent.

MR. DI ROLLO: The United Nations Charter talks about the use of force or threat of use of force.

LORD PROSSER: I know.

MR. DI ROLLO: I think if the use of force is illegal then the threat of use of force would be illegal.

LORD PROSSER: Regardless of a belligerent these are built up as the laws regulating war it might be described, but you are saying you would accept these in fact would apply to threats made by a non-belligerent.

MR. DI ROLLO: I am not accepting that because we are dealing with humanitarian law which is not necessarily saying…

LORD PROSSER: Yes, but in terms of humanitarian law I can’t see how one could distinguish between an actual belligerent, and this envisages breaking those rules regardless of whether they were a belligerent.

MR. DI ROLLO: I’m not sure if the only way of breaking the rules in relation to armed conflict would be using the weapons I would submit.

LORD PROSSER: I am thinking of the passage at the end of 78 which says “If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.” Now a threat I suppose can be made by a non-belligerent, particularly if it is a unilateral threat against no particular enemy. Anyway you can’t point to a direct passage that deals with that kind of drawback to a non-belligerent situation.

MR. DI ROLLO: Paragraph 88, the Court now turns to the principle of neutrality, “The Court will now turn to the principle of neutrality which was raised by several States. In the context of the advisory proceedings brought before the Court by the WHO concerning the legality of the use by a state of nuclear weapons in armed conflict, the position was put as follows by one State: ’The principle of neutrality, in its classic sense, was aimed at preventing the incursion of belligerent forces into neutral territory, or a tax on persons or ships of the neutrals. Thus: the territory of neutral powers is inviolable (Article 1 of the Hague Convention (V) Respecting the rights and duties of neutral powers and persons in case of war on land concluded on 18 October 1907), belligerents are bound to respect the sovereign rights of neutral powers (Article 1 to the Hague Convention (XIII) Respecting the rights and duties of neutral powers in naval war, concluded on 18 October, 1907), neutral States have equal interest in having their rights respected by belligerents (Preamble to Convention of Maritime Neutrality concluded on 20 February 1928).

It is clear, however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to the transborder damage caused to a neutral State by the use of a weapon in a belligerent State. The principle so circumscribed is presented an established part of the customary international law. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used.

Although the applicability of the principles and rules of humanitarian law and of the principle of neutrality to nuclear weapons is hardly disputed, the conclusions to be drawn from this applicability are, on the other hand, controversial. According to one point of view, the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict does not necessarily mean that such recourse is as such prohibited. As one State put it to the Court: ’assuming that a State’s use of nuclear weapons meets the requirements of self-defence, it must be considered whether it conforms to the fundamental principles of the law of armed conflict regulating the conduct of hostilities (United Kingdom written statements); the legality of the use of nuclear weapons must therefore be assessed in the light of the applicable principles of international law regarding the use of force and the conduct of hostilities, as is the case with other methods and means of warfare (United Kingdom written statement). The reality is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties. In some cases, such as the use of low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas, it is possible to envisage a nuclear attack which caused comparatively few civilian casualties. It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties.’” and these are the written statements from the United Kingdom and the United States.

“Another view holds that recourse to nuclear weapons could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. In the event of their use, nuclear weapons would in all circumstances be unable to draw any distinction between the civilian population and combatants, or between civilian objects and military objectives, and their effects, largely uncontrollable, could not be restricted, either in time or in space, to lawful military targets. Such weapons would kill and destroy in a necessarily indiscriminate manner, on account of the blast, heat and radiation occasioned by the nuclear explosion and the effects induced; and the number of casualties which would ensue would be enormous. The use of nuclear weapons would therefore be prohibited in any circumstance, notwithstanding the absence of any explicit conventional prohibition.

That view lay at the basis of the assertions by certain States before the Court that nuclear weapons are by their nature illegal under customary international law, by virtue of the fundamental principle of humanity. A similar view has been expressed with respect to the effects of the principle of neutrality. Like the principles and rules of humanitarian law, that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States. The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the ’clean’ use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; Nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons.

This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view. Nor can the Court make a determination on the validity of the view that the recourse to nuclear weapons would be illegal in any circumstance owing to their inherent and total incompatibility with the law applicable in armed conflict. Certainly, as the Court has already indicated, the principles and rules of law applicable in armed conflict – at the heart of which is the overriding consideration of humanity – make the conduct of armed hostilities subject to a number of strict requirements. Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited.

In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements. Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.

Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice referred to as ’policy of deterrence’, to which an appreciable section of the international community adhered for many years.

The Court also notes the reservations which certain nuclear weapon States have appended to the undertakings they have given, notably under the Protocols to the Treaties of Tlatelolco and Rarotonga, and also under the declarations made by them in connection with the extension of the Treaty on the Non-proliferation of Nuclear Weapons, not to resort to such weapons. Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by the State in an extreme circumstance of self-defence, in which its very survival would be at stake.

Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons, the Court considers that it now needs to examine one further aspect of the question before it, seen in the broader context. In the long run, international law, and with it the stability of the international order which is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.

In these circumstances, the Court appreciates the full importance of the recognition of Article VI of the Treaty on the non-proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. This provision is worded as follows: ’Each of the parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.’” and my Lords the UK is party to that treaty.

“The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith. This two-fold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community.

Virtually the whole of this community appears moreover to have been involved when resolutions of the United Nations General Assembly concerning nuclear disarmament have repeatedly been unanimously adopted. Indeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all the States. Even the first General Assembly Resolution, unanimously adopted on 24 January 1946 at the London session, set up a commission whose terms of reference included making specific proposals for, among other things, ’the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction’. In a large number of subsequent resolutions, the General Assembly has reaffirmed the need for nuclear disarmament. Thus in resolution 808A (IX) of 4 November 1954, which was likewise unanimously adopted, it concluded: ’that the further effort should be made to reach agreement on comprehensive and co-ordinated proposals to be embodied in a draft international disarmament convention provided for the total prohibition of the use and manufacture of nuclear weapons and weapons of mass destruction of every type, together with the conversion of existing stocks of nuclear weapons for peaceful purposes.’

The same conviction has been expressed outside the United Nations context in various instruments. The obligation expressed in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons includes its fulfilment in accordance with the basic principle of good faith. This basic principle is set forth in Article 2 paragraph 2 of the Charter. It was reflected in the Declaration on Friendly Relations between States and in the Final Act of the Helsinki Conference of 1 August 1975.

It is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, according to which ’every treaty in force is binding upon the parties to it and must be performed by them in good faith’. Nor have the Court omitted to draw attention to it, as follows: ’One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. In its resolution 984 (1995) dated 11 April 1995, the Security Council took care to reaffirm ’the need for all the States Parties to the Treaty on the non-Proliferation of Nuclear Weapons to comply fully with all their obligations’ and urged ’all the States, as provided for in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on effective measures relating to nuclear disarmament and on a treaty on general and complete disarmament under strict and effect international control which remains a universal goal.’

The importance of fulfilling the obligation expressed in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons was also reaffirmed in the final document of the Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, held from 17 April to 12 May 1995. In the view of the Court, it remains without any doubt an objective of vital importance to the whole of the international community today.”

My Lords, it does seem the Court has gone out of its way to indicate that States have an obligation to pursue nuclear disarmament. I would observe the Court is going out of its way, but it rather suggests it accepts States need nuclear weapons until that stage is achieved…

LORD PROSSER: Legally possessed.

MR. DI ROLLO: Indeed.

LORD PROSSER: The latter passages we have been reading haven’t been relating to a question of whether they can be legally possessed, they have been relating to the question of whether they can be legally used, which is summed up as recourse. Are you making any suggestion about that?

MR. DI ROLLO: I would submit equally it is not suggesting the threat to use, or use is prohibited by international law, quite the contrary I think.

LORD PROSSER: You mean it is suggesting that while there are circumstances in which it would be prohibited there are other circumstances in which it would not.

MR. DI ROLLO: Yes my Lord.

LORD KIRKWOOD: Sorry, that proposition relates to possession and use?

MR. DI ROLLO: Possession threat and use. The final paragraph, “At the end of the present Opinion, the Court emphasises that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above, each of which is to be read in the light of the others. Some of these grounds are not such as to form the object to formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.”

My Lords there are a number of conclusions and what the Court seems to have done is not actually answered directly the question put to it, but it has broken it up into a number of questions and answers, that would appear to be the case anyway, and dealing with the question of advisory opinion and replies to the question put to the General Assembly proposition, there is in neither customary nor conventional international law any specific authorisation of the threat of use of nuclear weapons. And then proposition B, “There is neither customary…

LORD PROSSER: “There is in neither”.

MR. DI ROLLO: I beg your pardon, “There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such”. And proposition C, “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful.” and that was unanimously carried.

And D, “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principals and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.”

LORD PROSSER: That perhaps deals with the point I raised with you, you look at the requirement of international law in an armed conflict, but what they are saying is the threat or use of nuclear weapons as it were, whether or not in armed conflict should be compatible with those requirements. So even if you are not in a state of armed conflict, any threat or use of nuclear weapons should be compatible with the requirements of international law applicable.

MR. DI ROLLO: That would seem to follow. What it does say, at any rate the threat of nuclear weapons should be compatible with international law, and if one likes applicable in armed conflict, these rules are applicable in armed conflict. If one looks, by 7 votes to 7, “It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”

And then further the next item, “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international law.” And that is the application of Article 6 of the Non-Proliferation Treaty which I referred to earlier.

My Lords I have read out the international Court of Justice Opinion. Returning to my submission, what I have submitted was in relation to the international law questions in the Reference, that I think I had submitted that how the Court should go about finding out, under reference to the cases which I cited, and the texts which I have cited, how the Court should go about ascertaining what the law is. And that it is clear in my submission, at least in so far as the United Kingdom is concerned, and that is what matters, not how other countries go about doing this, how the United Kingdom…obviously how Scotland goes about it.

The evidence about the law, what the law is, does not come from the witness box. LORD PROSSER: I was thinking about this, it occurred to me the word “evidence” is perhaps a somewhat ambiguous one. It may be useful when talking about evidence given, by a witness, coming from the witness box not to use the word “evidence” but to use the word “testimony”.

MR. DI ROLLO: Yes.

LORD PROSSER: And perhaps to use evidence in its wider sense, of something that can be used, perhaps in a proper way by looking at textbooks or something, perhaps by looking at reports or foriegn cases, which perhaps technically might have to be proved, but are used as evidence in a wider sense, and if we perhaps try to use the word “testimony” when we are talking about people giving evidence.

MR. DI ROLLO: Yes my Lord I think that is helpful.

LORD PROSSER: I don’t know it is as tidy as that, but it seemed to me possible to use of the word “testimony” for that kind of evidence coming from a witness box.

MR. DI ROLLO: My Lord that is what I had in mind, in suggesting evidence what I had in mind was witness box testimony. Now that was the proposition, and there are two propositions in relation to what the international law points are, the questions are, that there is no conventional…sorry, there is no rule of customary international law prohibiting the United Kingdom from possessing or deploying nuclear weapons and there is also no…

Before I move on my Lords I think it might be helpful just to draw attention to, it is in EE of your Lordship’s Crown Authorities, just on the point about how to ascertain international law, and as I say what is important is what happens in the United Kingdom, and it may be these other countries have different practices in their Courts.

This is a report on the 6th Conference of the International Law Association in 1994, it is a committee on international law in municipal courts and what this document indicates, this report indicates what the position was in the United Kingdom, and that is page 333 about two-thirds of the way down the page, the report states that the necessary consequence of…

LORD PROSSER: Sorry, which question, is it question 8?

MR. DI ROLLO: Yes, “The United Kingdom report again states that the necessary consequence of customary international law being incorporated into municipal law is that it is ascertained and applied in the same fashion as all other rules of municipal law. In the case of treaties, it is the enacting statute which is relevant, and thus any directions by higher Courts on the application of Statute Law would be relevant.”

LORD PROSSER: That is different from some other countries where treaties have force in domestic law merely by accession to the treaty. In Britain they require an enacting Statute, is that right, so the form of the treaty isn’t by conventional international law, it comes in automatically, that occurred to me last night, so the word conventional in this circumstance, it doesn’t mean conventional in the strict sense, it means conventional as traditional. I would like to know where he is on page…conventional as a result of the Convention.

MR. DI ROLLO: It is a report of the Buenos Aires conference and page 333 about halfway down.

LORD PROSSER: I don’t think it uses the word conventional, I just wanted to understand that it meant agreement, because conventional in ordinary language often means customary.

MR. DI ROLLO: The two points, to be clear, the first point taken from that document is that the situation is that the UN does not have that particular rule and the second point is the other countries may have different ways of doing things. My Lords the question of conventional or treaty-based international law, or rules which come into being because of States entering into treaties, the situation as far as how that becomes incorporated into domestic law, or community law, Lord Justice Diplock in the case of Saloman against The Commissioner of Customs and Excise, which is 1967, 2 Queens Bench, 116.

LORD PROSSER: If it is in your file it would be easier for us.

MR. DI ROLLO: It is not, it is a passage to deal with the point about treaties that I want to draw to the Court’s attention, there are three copies for your Lordships. My Lords, I have just copied the passage that I want to refer to, it is at page 143. This passage was adopted in the case of T. Petitioner in Scotland by Lord President Hope in 1997 Scots Law Times page 724, which is something we do have in the bundle which is at Item O, and the passage which I want to refer to is, the case is concerned with a convention relating to valuation of goods for Customs purposes, and there seems to have been a conflict between that treaty, international treaty and a United Kingdom Statute, a Customs and Excise Act, and what Lord Justice Diplock says is that, reading from page 143, the righthand side of the photocopy, “The Convention, by Article II” that is the International Convention, “required each contracting party to introduce into its domestic law and apply the definitiono of value of imported goods set out in Annexe I to the Convention. The Convention is one of those public acts of state of Her Majesty’s Government of which Her Majesty’s judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves of such acts by enquiry of the appropriate Department of Her Majesty’s Government. Where, by a treaty, Her Majesty’s Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English Courts until Her Majesty’s Government has taken steps by way of legislation to fulfil its treaty obligations. Once the Government has legislated, which it may do in anticipation of the coming into effect of the treaty, as it did in this case, the Court must in the first instance construe the legislation, for that is what the Court has to apply. If the terms of the legislation are clear and unambiguous they must be given effect to, whether or not they carry out Her Majesty’s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty’s own Courts. But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is is a prima facie that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the Court to make its choice between the possible meanings of these words by applying this presumption.”

Now the Scottish position in relation to that is perhaps bit more restrictive in the case of Kaur which Lord Ross, the Lord Justice Clerk cited, I have not cited that.

LORD PROSSER: It has moved on a bit since then.

MR. DI ROLLO: Exactly, that is the position in conventional international law in relation to…

LORD PROSSER: In fact in some cases perhaps unreported I think possibly judges have gone rather wider than is suggested in Lord Justice Diplock’s opinion, because he is really talking about looking at the legislation which is designed to fulfil the international obligation and put the treaties into our law. I think there are cases in which Scottish Courts have been willing to look at the international obligation not just in relation to the enacting treaty, but just as the general context, in particular in relation to the European Convention on Human Rights.

I think was taken into account in some measure in talks which we were in, not really concerned the context enactments to incorporate it, but anyway the treaty certainly doesn’t ipso facto become law in Britain, the treaty doesn’t by itself become part of the United Kingdom law, or Scottish law, it needs an Act of Parliament to make it part of our domestic law, as I understand matters.

MR. DI ROLLO: Yes my Lord, it has to be said there have been references to the convention by the Courts, the European Convention on Human Rights before it was incorporated… (indistinct)…

What I want to do now is refer to the Stair Encyclopaedia. In my submission there are a number of statements which are of value on customary international law, to put it in the domestic context. It is Item T and it is Wallace and Grant’s contribution to the book, Stair’s Encyclopaedia Volume 19 and I just want to go through a number of passages, the passages which I want to go through are 637 to 644.

MR. MOYNIHAN: Before your Lordships go any further, your Lordship indicated yesterday if there was any concession to be made it should be made sooner rather than later and it may be this particular matter is one that is not of pressing significance. I have checked round the table in so far as I can the various interests. Can I make my position clear?

LORD PROSSER: Do you want to take it further?

MR. MOYNIHAN: Perhaps if I state my position, I am not relying on Professor Boyle’s evidence for any independent statement of the law. My submission will depend on a proper analysis of the opinion of the International Court of Justice, with the dissents your Lordships have not yet seen. So I am not going to attempt to set up by any route other than by proper reading of that case and in…(indistinct)…

LORD PROSSER: So that the issue, that would not matter really, the whole question of whether testimony is a proper source, one wouldn’t need to answer that.

MR. MOYNIHAN: Not in relation to the rules of law. I am not going to use Professor Boyle to establish a rule of law, I am simply going to use the opinion of the ICJ with the dissents that we have and the consequence which I will explain later. That may assist if that is a common position for avoiding any further detailed discussion.

LORD PROSSER: There is no obligation on anyone to say anything. Does anyone else want to associate themselves with that?

MISS ZELTER: I think I would like to think about it and reserve my position.

LORD PROSSER: Mr. Anderson.

MR. ANDERSON: My Lord, as far as Professor Boyle’s evidence is concerned, it is of importance with regard to the international law subsequent to the ICJ opinion and that point is relevant to this case.

LORD PROSSER: So you will be referring to it.

MR. ANDERSON: Yes.

MR. O’NEILL: I will reserve my position.

MR. MOYNIHAN: My Lords in that event I apologise for the intervention.

LORD PROSSER: No, I think it was sensible to raise the point.

MR. DI ROLLO: My Lords I refer to the Stair Encyclopaedia page 637 first of all to page 644, “Customary international law comprises those rules and norms of behaviour which are consistently pursued by States out of a sense of legal obligation or because of a feeling that failure to act in such a way would incur sanctions from other members of the international community. However, not all activity engaged upon by States constitutes customary international law, but is rather usage.”

Then there is distinction between usage and custom, “Behaviour which is followed by States out of friendship or convenience rather than from a legal obligation is usage. A practice, no matter how frequently or uniformly engaged upon, cannot be characterised as law if the participants feel that the practice may be disregarded at any time. Usage represents the twilight zone of custom. Custom begins where usage leaves off and, as may be anticipated, it is frequently difficult to identify when the transformation to customary international law from usage actually occurs. An alleged rule of customary international law to be accepted as such must, however, manifest two distinguishing elements, namely, (1) a material element, that is, practice engaged in by a number of States and acquiesced in by others; and (2) a psychological element, that is, a feeling that the practice is mandatory rather than discretionary.”

And then paragraph 639 material elements, “International law does not demand that the State practice in question should have been engaged in since time immemorial. The importance of the time element requirement has receded in the wake of improved communications making the practice of States readily known. In contemporary international law the passage of only a short period of time is not necessary, of itself, a bar to the formulation of a new rule of customary international law. The importance that time will assume will depend upon other circumstances pertaining to the relevant practice. In an under developed area of law, where there are no legally established rule of behaviour, time will be of minimal significance; but if there are established rules to be overruled, then a new conflicting conduct will have to have been pursued for a longer period. As a general rule, time, though relevant, is not a vital element. To be acknowledged as law the practice in question must be in accordance with a constant and uniform usage practised by the State, and should have been both extensive and virtually uniform in the sense of the provision invoked. Thus, to be characterised as law there must be evidence of a consistency of practice.

This is more important than frequency of behaviour, and the absence of such evidence can defeat a claim that a particular rule constitutes customary international law. Nevertheless, inconsistency of practice does not in itself prevent a rule from being accepted as customary international law. Although major inconsistencies undoubtedly will prevent such a crystallisation, minor inconsistencies may not have such a nullifying effect.

International law does not demand that a practice be universally engaged in but rather that it be a general practice accepted as law. The number of States may not be of great importance, but the identity of the States practising the alleged rule of law is of importance, as was highlighted by the International Court of Justice in the North Sea Continental Shelf Cases, where the Court stated unequivocally that an indispensable requirement would be that within the period in question… State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform.

In other words, the practice of the States whose interests are affected will determine whether a rule is to crystallise into law.

Uniformity of practice is required, however, in respect of regional customs. In the context of a regional custom, universality assumes an importance denied to it in respect of general custom. This is because a regional custom involving fewer States is of a contractual nature and as a consequence must be recognised and acceded to by all participating States. Notwithstanding what has been said about practice, rules may have become accepted as law in spite of little overt practice. The doctrine of the Continental shelf evolved to customary law on the basis of assertions and general acquiescence rather than on actual practice”.

And then paragraph 640, dissenting States. “A State may have avoid being bound by a rule of customary international law if it has demonstrated its opposition from the time of the inception of the rule. For this purpose, opposition must be expressed, as silence is taken as acquiescence. The rule that dissension must express and must be expressed from the outset admits no exceptions. Later opposition to an established rule does not relieve a State from its obligations arising from the rules and opposition, once abandoned, loses its non-application effect. Nor is a new State given the option of selecting which rules of international law it must follow. If a rule is established, the new member of the international community is bound, irrespective of whether it accepts the rule in question.

Amendment and modification of customary international law. Customary international law, if it is to accommodate change, must allow rules to evolve which are contrary to those already established. The new rule will crystallise into law if it meets with a positive response. Conversely, if it meets with a negative or limited response, it will fail to establish itself as law and the existing rule will remain. In theory this appears straightforward, but in practice new behaviour indulged in by a number of States may be expressed in an inconsistent manner. There are obvious consequential repercussions with respect to the speed with which amendment and modification may be accomplished. Change will not be so forthcoming if States are equally in their support for the established rule and the new rule. In such circumstances the international community is confronted with, in effect, two rules of customary international law existing simultaneously.

While custom cannot be dismissed as being of no consequence, there is undoubtedly validity in Friedmann’s criticism: ’That custom can no longer be as predominant or important a source of law as it was in the formative period of international law…. Custom is too clumsy and slow moving a criterion to accommodate the evolution of international law in our time, and the difficulties are increased as the number of subjects of the law of nations swells from a small club of Western powers to 120 or more sovereign States. More importantly, custom is an unsuitable vehicle for international welfare or co-operative law. The latter demands the positive regulation of economic, social, cultural and administrative matters, a regulation that can only be effective by specific formulation and enactment.’

And then evidence of State practice. “Treaties, decisions of international and national Courts, national legislation, diplomatic correspondence, opinions of national legal advisors and the practice of international organisations can be regarded as evidence of State practice. Other possible reflectors of State practice include inter alia policy statements, Press releases, official manuals on legal questions, executive decisions and practices, order to Naval Forces and comments by governments on drafts produced by the International Law Commission.

In the Barcelona Traction, Light and Power Company Case the view was expressed that, with respect: ’To State practice as manifested within international organisations and conferences, it cannot be denied, with regard to the resolutions which emerge therefrom, or better, with regard to the votes expressed therein in the name of States, that these amount to precedents contributing to the formation of custom.’ Some international laws recognise physical overt acts as the only evidence of State practice, but contemporary international law does not support the adoption of such a limited definition; for example, the doctrine of the Continental Shelf evolved notwithstanding the absence of such practice.”

And then passage 643, opinio juris sive necessitatis “Practice of itself is insufficient to transform an alleged rule of international law into law. Particular behaviour may be permissible under international law, but it is the presence of opinio juris (that is, a belief that it is obligatory) which is evidence that the behaviour in question is required. Opinio juris therefore transforms behaviour from the discretionary to the mandatory. In other words, before it can become law, practice must be accompanied by opinio juris. Establishing the existence of opinio juris can be difficult. It appears that in the absence of express statement recognising a legal obligation to act in a particular way, opinio juris may be inferred from consistent practice. It is the responsibility of the State alleging the existence of a particular rule of customary international law to show that the other party is bound by the rule in question. States seeking to modify or amend existing customary international law must act in a way which is contrary to the established norm, with the belief that the new conduct is going to evolve into law a new norm will arise to replace the old depends on the acts being accompanied by the requisite opinio juris which can be proved.

The complexity of establishing opinio juris has inter alia been responsible for the regulation of contemporary international law by treaty rather than custom. The demarcation between treaty and custom is frequently not clearcut. Customary international law and treaty provisions are closely interrelated.

Customary international law may be codified and a multipartite convention produced; conversely, a rule expressed in either a multipartite treaty or in many bipartite treaties may pass into customary international law.”

And then the next passage, equality of customary international law and treaty law. “Customary international law and rules enunciated in international agreements have equal authority in international law. Unless the parties have stated to the contrary, a rule established by international agreement will for the parties involved supersede and earlier conflicting rule of customary international law. A new rule of customary international law will supersede earlier inconsistent obligations established by international agreement unless the parties concerned have agreed to maintain between themselves the earlier treaty. Modification of customary international law by agreement frequently occurs. Modification of international agreement by custom is more unusual.” etc.

Now I would also like to refer to the short passage at page 654 dealing with customary international law and then I will turn to 739 which is the one about advisory opinion. Paragraph 654, “Customary international law is in its full extent part of the law of England. This assertion that customary international law is automatically incorporated into domestic law demands qualification.” Now as far as being part of the law of Scotland I don’t think there is any law or rule to allow that unless…and of course the United Kingdom is a State for international law purposes and I don’t think…

LORD PROSSER: Yes and I suppose despite what we have noted about the effect of modern international law it does acknowledge individuals, and widening it still, States, that the primary persons who create international law, either by entering treaties or by being what one may call the persons who have the opinio juris themselves as bound by…(indistinct)…then the United Kingdom which as it were is a party to creation of international law together with other States…

MR. DI ROLLO: But the treaty is said there to the extent of the law of England, there is no need to think it is not part of the law of Scotland, int he same way. No reason to think or submit it is not part of Scots Law in the same way. “This assertion that customary international law is automatically incorporated into domestic law demands qualification. Customary international law will be accepted and applied, but only if it can be demonstrated that Britain has assented to the alleged rule.” That is obviously important.

LORD PROSSER: That is rather like our position in relation to conventional international law the State will be bound by questions as to what other States did with conventional matters but it only becomes part of our domestic law if it is incorporated by an Act of Parliament, as regards customary international law as it is put, as it says here it has to be demonstrated that we have assented to the rule.

MR. DI ROLLO: Yes and there exists neither judicial decision of a higher Court nor a legislative act to the contrary. “Lord Denning appears to have departed from being a traditionalist in the Metallics Trendtex case when he concluded that the correct school of thought should be automatic incorporation rather than transformation, that is, as a result of domestic legislative or judicial acts.

His reasoning for this apparent difference in viewpoint was that under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But under the doctrine of transformation, the English law does not change. It is bound by precedent. In adopting this position Lord Denning was able to maintain that the rules of international law, as existing from time to time, do form part of our English law and in addition that: ’A decision of this Court, the Court of Appeal, as to what was the ruling of international law 50 or 60 years ago – is not binding on this Court today. International law knows no rule of stare decisis. If this Court is satisfied that international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change – and apply that change in our English law – without waiting for the House of Lords to do it.’

Lord Denning’s observations must be read within the context of circumstances of the case. Lord Denning was seeking in the Trendtex case to bring the United Kingdom law on State immunity into line with the law of the United States of America and European countries. He was in favour of a restricted immunity rather than absolute immunity from British legal process.

The case arose before the State Immunity Act 1978, when the law on immunity was governed exclusively by judicial decision. Lord Denning was arguing for a change in English law, but found himself, if adhering to traditional doctrine, constrained by the English rules of precedent. In other words, he developed an exception to applying judicial precedent if the relevant international law had changed subsequent to the previous decision.”

LORD PROSSER: But if in the present case it were established that any point was a rule of international rule is it the Crown’s position that it is nonetheless not a rule of the UK, in Scottish form, if once one gets to the stage of there being an established rule of international law, in this case.

MR. DI ROLLO: Yes.

LORD PROSSER: Is there then going to be an argument that nonetheless it has not become part of the United Kingdom law.

MR. DI ROLLO: Well it would have to be demonstrated this country had assented to the rule, and if it can be demonstrated the country had assented to the rule then I think….

LORD PROSSER: But you are not accepting it is almost a question of onus, persuasive onus. Are you saying there has to be some positive additional indication of assent.

MR. DI ROLLO: That is what seems to be….

LORD PROSSER: Rather than a semi-negated by what was called a judicial decision of a higher Court, or a legislative act to the contrary. If you can’t point to any judicial decision or legislative act to the contrary wouldn’t one proceed on the basis international law was…

MR. DI ROLLO: It would have to be demonstrated the State assented, Britain assented to the rule first of all the rule would have to be identified precisely what it was of course. One would have to identify precisely what the rule was is the first point, absolutely essential in any rule, it has to be identified and goes back to some extent to Lord Oliver’s remarks in the J.H. Rainer case, it is certainly not for a domestic Court to legislate a rule into existence for the purposes of domestic law, on the basis of material that is wholly indeterminate.

LORD KIRKWOOD: Page 232 there is a presumption in favour of international law as opposed to foreign law, international laws lie within judicial knowledge.

MR. DI ROLLO: My Lord which paragraph is that?

LORD KIRKWOOD: 8 in the middle of page 232, the seventh line.

MR. DI ROLLO: That is the point that, I think that because the law is to be applied, if it is an international law rule it is being applied in the domestic Court, it is not foreign law, it is the law of the country, the law of the lex forum therefore it is within judicial knowledge, the Court is deemed to know the rule.

LORD KIRKWOOD: But that is starting from the assumption it has become part of our law. I mean that argument flows if it is incorporated into our law, because unless and until it has been incorporated, it isn’t. You can’t argue that it is just up to the judges to determine it, you only get to that stage once it has been incorporated, and paragraph 654 which you were looking at was dealing with whether it is incorporated it is part of our law, and you were saying that you couldn’t concede or wouldn’t concede it was to be assumed to be part of our law in the absence of legislation or judicial decision, you were saying even in the absence of a judicial decision and any legislation to the contrary there was something more that had to be done, presumably by Respondents who saw that it had become part of our law.

Well in judging that question it isn’t yet part of our law, is it? I can see analytically this may be interesting, I can see it is interesting in practical terms if people, if you can’t point to judicial decision, or legislation to the contrary. If in general once something is part of our law it is for the Courts to decide about it. The ordinary rule, the ordinary approach a judge, when there is an absence of anything to the contrary, I can’t see any reason why it shouldn’t be seen as ours, and since it is my job to judge what international law is I reckon this is international law and it is part of our law.

MR. DI ROLLO: My Lord I’m not sure.

LORD PROSSER: It would be a rather sloppy argument but it doesn’t seem to do damage to commonsense.

MR. DI ROLLO: A number of different constituent parts to that, ascertaining the law, whichever law it is can be a difficult exercise in respect of….but it is for the Court to do it I say, not to establish a whole lot of testimony from the witness box but by means I have indicated.

LORD PROSSER: Yes but all that argument depended on the assumption it had become part of our law.

MR. DI ROLLO: It is a rule of customary international law in order to ascertain whether it has become, to distinguish the question of how it becomes part of our law, how the Court determines it becomes part of law, and also what the rule actually is, and there are two processes going on there, and it seems to me both of these processes are for the Court to determine.

LORD PROSSER: But if it has not yet become part of our law and if the Court is at the stage of looking to see whether it is a rule of international law, which potentially might be part of our law, why shouldn’t one see it as still as it were foreign law at that stage, so that it would become a matter of testimony to establish what the rule of international law is, if one is assuming it is not yet part of our law.

MR. DI ROLLO: Well it is not foreign law, it is not law at all.

LORD PROSSER: Well it is international law.

MR. DI ROLLO: I’m not sure it necessarily is my Lord.

LORD PROSSER: Well this passage is about whether it has been incorporated into our law, it is not whether it is a rule of international law, one might accept it was a rule of international law, notwithstanding we might be opining a judicial decision, so that it was not part of our law.

MR. DI ROLLO: When one is talking of this in the abstract without identifying any particular rule that perhaps causes a problem. Paragraph 68 what is stated there is behaviour which is followed by States out of friendship or…(indistinct)…

LORD PROSSER: I accept that but we are talking about something that Britain, you have conceded, at an international level, may accept was a customary item of international law, and what I understand your proposition is the further question to be asked, well the fact it is part of customary international law you say does not mean that ipso facto it is part of domestic law.

MR. DI ROLLO: That’s correct.

LORD PROSSER: Well I don’t know why you are going for having established it is international law, we assumed it has achieved the status of being a rule of international law. Now if you have discovered a particular UK Court, Scottish Court, the possible further question is, is it something Britain has assented to make it part of our law, or are you saying that is just the assent, I’m a bit lost, you may want to get back to your own track, but I don’t feel it has been resolved.

MR. DI ROLLO: I take your Lordship’s point, it is perhaps something which has to be looked at again.

LORD PROSSER: You get back on your own track then.

MR. DI ROLLO: The situation is that what I want to do now is to refer to the Stair Encyclopaedia at 739, advisory opinions just to refer to it in the context of the International Court of Justice Opinion which I read this morning. “Independent to its jurisdiction in contentious cases, the International Court of Justice has under its Statute the competency to give an advisory opinion on any legal question at the request of the General Assembly of the United Nations, the Security Council and other bodies authorised by the General Assembly. States do not enjoy the right to request an advisory opinion, but they nevertheless participate in such proceedings before the Court. An advisory opinion is essentially only advisory, but in practice requesting bodies and other parties have accepted the Court’s opinion; consequently certain advisory opinions have been influential in the development of substantive international law.

The rules governing the exercise of the Court’s advisory functions are laid down in the Statute and the Rules of the International Court of Justice. The Court, in addition to the express rules pertaining to advisory opinion, is guided by the rules applicable to contentious cases. Once it has gathered all the necessary information, the Court deliberates in camera before delivering its opinion in open Court.”

LORD PROSSER: The ICJ itself is a creature of international law.

MR. DI ROLLO: That’s right.

LORD PROSSER: We haven’t been directed as it were to terms of the Statute that define it, but if one – are they going to be relevant either in terms of contentious cases or advisory, what is the status of what it says.

MR. DI ROLLO: My Understanding…

LORD PROSSER: That is assuming if they give a clear decision either in contentious cases or as a piece of advice, what is the status, does it change the international law, or does it accept it as being as it were the end of the road exhausting the question of what international law is at the moment.

MR. DI ROLLO: With regard to advisory convention of international law it presumably relates to construction of the provision and with regard to customary international law the position would perhaps be different to my Lord, I am not really in a position to address the Court to what extent non-advisory opinion, the rules of the ICJ are regarded by States as binding.

My Lords my submission to the Court is before any rule of customary international law is to be accepted it would have to be identified precisely what it was.

LORD PROSSER: Yes.

MR. DI ROLLO: And the Court would have to be satisfied that it is indeed part of Scots Law, it has to be incorporated into Scots Law, it must be shown to be a valid rule, not merely an unsupported proposition. As far as the ICJ opinion in this particular case is concerned it in my submission does not say that the possession or deployment of nuclear weapons is unlawful, it does not say that the threat or use of nuclear weapons is in all circumstances unlawful, either under conventional or customary international law. And further there is no customary or conventional international law rule which justifies, is capable of justifying the actings which are libelled on the Indictment, on the date when they were committed.

LORD PROSSER: That is a point that the decision doesn’t deal with, it doesn’t touch on what a person would be justified in doing to prevent a primary act.

MR. DI ROLLO: It doesn’t.

LORD PROSSER: So we haven’t got there at all.

MR. DI ROLLO: No.

LORD PROSSER: You were maybe just at this stage of saying there was no rule, in simple terms this is not criminal in those terms, ergo the whole question of justification does not arise.

MR. DI ROLLO: My Lord there is no rule, the ICJ opinion, that is one thing, but there is no other rule from any source which in my submission permits the conduct which, or the acts libelled in the Indictment.

LORD PROSSER: I’m slightly unsure what you are saying. You are saying there is no other rule permitting these acts, even if the deployment threat was established as being contrary to international law.

MR. DI ROLLO: Yes my Lord.

LORD PROSSER: Obviously if they are not I can see the whole basis for intervention would depart, but if these were acts contrary to international law incorporated into domestic law, you say that even then the intervention is not justified in terms of international law, you may assert that, but am I right in saying the ICJ opinion sheds no light on that.

MR. DI ROLLO: Yes.

LORD PROSSER: So you will be returning to that.

MR. DI ROLLO: I am now turning…

LORD PROSSER: I said returning, you are going on to tell us why you assert that, or not.

MR. DI ROLLO: No I am not.

LORD PROSSER: You are just asserting it, you can’t find that rule.

MR. DI ROLLO: Indeed.

LORD PROSSER: There is a certain amount of material before us about the whole area of the right or obligation to intervene to prevent a crime, isn’t there, it won’t do to say orders are orders.

MR. DI ROLLO: It won’t do to say orders are orders, that may well be correct, but that is not the situation we have been in at all.

LORD PROSSER: Anyway that is an area to discuss. You say you don’t want to open it up.

MR. DI ROLLO: I don’t want to open it up at this stage. My Lord there is some reference in relation to Lord Murray’s article which has not yet been copied for your Lordship, but there is a passage in it in relation to the distinction between the threat of force and what he understands the word threat means in this context, and it is a very short paragraph and I will read it out, obviously your Lordship’s don’t have the whole article.

LORD PROSSER: Can I have a reference to the article.

MR. DI ROLLO: The article we have is obtained from the Internet apparently and I don’t know if it has actually been published.

LORD PROSSER: Oh I think so, I think I remember when it was, read the bit you want.

MR. DI ROLLO: The article is, a passage from the text of a speech given in Oxford, it may have been published my Lord in a journal, the text of which was contributed to by Lord Murray, and as a result of that Production it seems to have been relied upon by the Sheriff, and what he says is, “The Court I think rightly proceeded on the basis that threat is equivalent to use. In this context threat means a practical warning directed against a specific opponent. So a general display of military might, such as a Red Square parade in Soviet days or a routine Trident submarine patrol, would not alone constitute a threat at law. Further, mere possession is not forbidden at all.” It has been published in Conflict and Survival and it is an article entitled “Nuclear Weapons and the Law”.

LORD PROSSER: Is there a year or volume number?

LORD PENROSE: 1998, it appears in the Sheriff’s note.

MR. DI ROLLO: Based on a speech to the Oxford United Nations Association delivered in Oxford Town Hall on 15th October, 1998.

LORD PROSSER: The Sheriff I think refers to the authority status. I think Lord Murray would forgive me if I said when we speak away from work perhaps what we say is a bit freer and not with judicial authority perhaps after being addressed in argument.

MR. DI ROLLO: Of course, no doubt, and the Sheriff seems to have relied upon it, and the proposition put forward by the Respondents.

LORD PROSSER: But you rather say from the bit you read, I don’t know whether it is in context, but you say on the basis of the bit you quote his view of threat is something more like the assault type threat I touched on yesterday, something that is specific, perhaps not necessarily as immediate as I imagined, but more like Lord Kirkwood’s example with a bit of time, but it doesn’t incorporate implicit threat in either possession or deployment, that is not threat in the sense he reckons the ICJ were equiparating it with use.

MR. DI ROLLO: That’s correct.

LORD PROSSER: I can’t remember the passage – equiparated with use, it is certainly coupled with use, they will plainly have some rule.

MR. DI ROLLO: It comes from the question posed by the General Assembly.

LORD PROSSER: There is no indication one would have a different rule from one, than the other.

MR. DI ROLLO: It must be right if the use of force is illegal, then the threat of force…

LORD PROSSER: Right.

MR. DI ROLLO: So I wanted to point that out. My Lord my submission is the question posed in the Reference should be answered in the negative for the reasons I have given.

My Lords, I would wish a brief adjournment just to see, there was one other article or source of authority which I was trying to find and if we can find it at this stage it might be helpful, if I can possibly have a short adjournment.

LORD PROSSER: Yes, it may be, I don’t know, it may be a useful time to rise.

It may be premature for me to raise this, but it is niggling in my mind. I am no doubt over-simplifying what I am saying but I at the moment seem to see two different strands in the arguments by the Respondents, there is one strand which basically suggests that they would like this Court to answer what one can call the real questions which the trial raised and that one might do that substituting different questions, no doubt adding to them, or subsuming them, but basically the formulation of the question set out by Zelter is something this Court should be dealing with answering. Of course one would have to be sure there was fair notice and so forth, these are questions one should answer, and I think if we were answering that kind of question it must be part of that position, it is accepted what we said might indicate the acquittal was wrong, that kind of thing, that is a first strand, to get to the real questions and deal with them.

There is I think a different strand in which it seems to be part of the Respondents’ position that for a variety of reasons one should not answer the questions, or certain questions put by the Lord Advocate because, among other reasons, because the answers we give might indicate the acquittal was wrong and for that and perhaps other reasons Reference procedure in general, or at least this Reference is in breach of convention rights. I know in a sense these are points which will arise in relation to devolution matters, human rights points taken, but I think while I am not asking for an answer now, but if we are having an adjournment you might consider what the Crown’s position really is, are you saying we should indeed, in answering your questions, acknowledge that the answer might not be an affirmative one, as you say, but the answer might be yes but, and require an answer to what I would call Miss Zelter’s question. Are you saying we should do that, or what is your position going to be. It may be more a question for the Respondents to think about but I thought it seemed to me there was perhaps a paradox or conflict with what we were going to be asked to do by the Respondents.

It may be a contrast between the law approach, lawyers’ approach, I don’t know, are we going to be asked to answer the real question, or are we going to be asked for legal reasons not to answer it.

This is perhaps not the time to raise it but this is something I should raise earlier rather than later, so we will have a brief adjournment and then you might have a further point at that stage and we would have reached a point at which the whole of the Crown argument was as it were known to the Respondents, of course subject to what the AD may eventually say, but essentially the junior’s speech is meant to put the Crown position, but that would be the point at which we perhaps should hear as it were which specific matters raise questions of fair notice, which are still seen as live, and perhaps a wider consideration, which of the human rights and devolution points, it might be said they should be reserved at this stage and I think you can take it subject to what is said the Court would be willing still to reserve its position on these matters to a later stage.

So I thought I would get that off my chest.

MR. DI ROLLO: It might be sensible to use this as the lunch break.

LORD PROSSER: I would have thought so. I’m assuming the various Respondents are liaising with one another.

After an adjournment for lunch.

LORD PROSSER: Mr. Di Rollo, you wanted an adjournment.

MR. DI ROLLO: Indeed, what I was trying to do was see whether the source referred to by Professor Brownlie could be found and some attempt has been made and will be made to see if that can be obtained.

LORD PROSSER: Sorry, the source?

MR. DI ROLLO: Professor Brownlie in the use of threats, sorry, the definition of what a threat is, I was attempting to see whether the source of his proposition is one source which he refers to and I was looking to see whether that could be found. I haven’t been able to find it so far, so I wouldn’t wish to hold matters up obviously.

LORD PROSSER: Very well, so you are just concluding.

MR. DI ROLLO: Yes my Lord, I don’t think I have perhaps gone into the evidence that was led in any detail with the Court, I haven’t referred to it at all. My submission is that this evidence doesn’t allow for the proposition that appears to be being put forward by the Respondents, on behalf of some of the Respondents, to the effect that the United Kingdom was threatening to use nuclear weapons in the sense referred to in the ICJ opinion.

LORD PROSSER: Certainly in the ICJ opinion it appeared that deployment was seen as it were, at one point if I remember, deployment was rather lumped together with possession and testing whereas threats were lumped with use on the other side of the dividing line, that would seem therefore to be suggesting the word threat would not cover the threat that might be seen as implicit in their possession and deployment, or…(indistinct)…mere possession never mind deployment carries some implication of threat, I think it was seen as a kind of threat, it seemed to be on the other side of the line from deployment.

Can you remind me is there evidence that is indicative of threat, beyond the threat inherent in deployment.

MR. DI ROLLO: In my submission there is not such evidence, there is certainly not such admissible evidence, no admissible evidence. I may say clearly the evidence is not a matter for the Sheriff in the sense it is not a matter for this Court, the Sheriff made some findings on the facts, if she did make findings on fact she was entitled to do that, in my submission.

LORD PROSSER: I follow that, as it were a point of procedural…evidence on procedure. But what is your position on this? That your questions are posed as it were in general terms. I think it would be possible to answer them as it were wholly ignoring the question of how the rules there were applied, or should be applied in the case in hand. Now is that the right approach or has one to read that in context, as I think you have, to make them arise out of the case. Does it work back the way, in answering them one has to look at the evidence in hand, or can one ignore it.

MR. DI ROLLO: I am not seeking to deal with that, I think it is better for my learned senior to deal with that, he is going to deal with questions about procedure in relation to answering the questions.

LORD PROSSER: It may be, but the junior’s speech I think is meant to cover the whole range of what is your position.

MR. DI ROLLO: Yes but we are moving on, your Lordship has raised a specific matter arising out of what I have said.

LORD PROSSER: I appreciate that. I think a question does arise as to whether one is answering this in the clouds as it were, and this is true whether it is in your formulation as it stands in the Reference, or even in relation to Miss Zelter’s formulation, that one could regard them as general questions not related to the way they were applied, or should have been applied in this case, but again it is sensible for me to highlight sometimes things that might be troublesome in our minds eventually.

MR. DI ROLLO: My Lord without in any way wanting to avoid the question, your Lordship is concerned about these matters, the two things, that as far as possession and deployment are concerned in the Crown’s argument there is reference between, reference to treaties dealing with the deployment of nuclear weapons in the States taken from the ICJ opinion. If you like there are a number of treaties where deployment is prohibited to which the UK is party to those treaties, and there are a number of treaties where there is prohibition of weapons, but there are no provisions in the treaties prohibiting nuclear weapons, the non-proliferation treaty, in that regard Britain has not agreed not to possess.

LORD PROSSER: So while the other side will be saying here are examples of as it were strong prohibition in international law, it is a two-edged situation you say, the interpretation is they are away because there are exclusions, or reservations by people that shows that it is not international law in the full sense of binding on the UK.

MR. DI ROLLO: Weapons have been prohibited, biological weapons, chemical weapons, but nuclear weapons have not been prohibited in the same way. So those are my submissions and as far as dealing with the next stage of procedure I think my learned senior would wish to address the Court.

LORD PROSSER: I hope people don’t think I was imposing a regime, I was just in a sense raising these things.

MR. MENZIES: My Lord the Crown’s position remains as it was, that the Crown does not seek to amend the questions that are before the Court. However, the way in which the Court chooses to answer those questions is a matter for your Lordships and I would not seek to attempt to delineate or define any particular way in which your Lordship should answer those questions.

LORD PROSSER: Maybe not, but if we are disposed to take a question like question 2, if we were disposed to answer your second question in the affirmative I think you have to take the position whether it is all right for us to say “No, but…”

MR. MENZIES: That is why I say my Lord…

LORD PROSSER But you would have to say that is a legitimate way of answering it in terms of the Statute, in other words that one has to read your questions in the context of the Statute which has to be seen arising out of, or whatever expression you use, and you have to I think have a position whether it would be legitimate to see that question as arising out of the proceedings, because of the need perhaps to answer that in terms of “yes, but…” or “no, but…”

MR. MENZIES: The formal questions that are before your Lordships are the four formal questions in the Reference. I acknowledge your Lordships may with to address your minds to other issues when formulating answers to those questions.

LORD PROSSER: Yes.

MR. MENZIES: And I don’t suggest if that is the way your Lordships approach the matter there is anything wrong with that.

LORD PROSSER: That is what I meant I think when I raised this, I took the strands which I described in terms of answering the real questions and perhaps the need to substitute questions, which has been one line taken, perhaps to add questions, or what I called subsuming, in other words, wishing to answer what you might call the Zelter formulation, in reaching an answer on the Lord Advocate’s formulation. You are saying that would be wrong.

MR. MENZIES: I am not saying subsuming would be wrong, I don’t think it would be possible for your Lordships to substitute different questions.

LORD PROSSER: I appreciate that, that is why this is of some significance.

MR. MENZIES: And I don’t think it would be proper for your Lordships to ignore as it were the questions in the Reference and formulate completely different questions.

LORD PROSSER: That’s right, if from that proper practical approach, if they are to be read in the context of a trial that occurred and if we thought it proper to answer what I call the Zelter questions, and if you weren’t attacking that approach then it might be quite unnecessary to consider the possibility of extra questions, or replacement questions, because one would be answering the questions.

MR. MENZIES: My only difficulty my Lord is the idea of your Lordships answering the Zelter question. It may be your Lordships would give views on these issues as they arise.

LORD PROSSER: A formal answer to your question may take the form “yes, but…”

MR. MENZIES: I have no difficulty with your Lordships considering other matters, to use your Lordships’ phrase, if your Lordships felt it appropriate to answer the question in the clouds as it were, it is entirely a matter for your Lordships.

LORD PROSSER: Yes, now I want to know where the troops marshall, if I just run round you in order to see what your position is. Miss Zelter.

MISS ZELTER: I am happy with that, the only…

LORD PROSSER: Sorry, with…?

MISS ZELTER: As far as I can see that will go to the questions I have asked you to look at and you will answer them on that basis.

LORD PROSSER: You can take it that is the Court’s strong inclination.

MISS ZELTER: The only other thing that has not come up, I want to make sure the Sheriff’s acquittal won’t be undermined, and that wasn’t one of the questions.

LORD PROSSER: I don’t think there is any question of it being reversed as it were, but I think one point raised in some documentation because of what we say that may so imply. It would be for the Crown on various points, but the implication may be the acquittal was wrong. I’m not sure I see how it would be compatible in certain circumstances. I think there was some suggestion that was as it were a human rights point which means we simply couldn’t answer these questions either way, and my impression was that you would find that rather unfortunate, if you want your formulation of questions answered, but that is maybe one where Mr. Moynihan would be both friend to you and a friend to us. Thank you very much.

MR. MOYNIHAN: My Lord, so far as that is concerned there was a matter raised with your Lordships yesterday at the commencement of the proceedings, which was only one-half of a wider question that I decided to leave over, and your Lordships may yet consider should be developed. I will raise it at this stage.

LORD PROSSER: Yes.

MR. MOYNIHAN: My Lord so far as the first strand of my Lord in the Chair’s two strands, my note of argument in relation to the second alternative to question 2.

LORD PROSSER: Yes.

MR. MOYNIHAN: Which is at paragraph 12.

LORD PROSSER: Yes, your primary submission based on evidence.

MR. MOYNIHAN: Yes, question 12 really aside there is a preliminary issue even in relation to the alternative secondary submission, I leave aside the preliminary issue, set that aside. The secondary submission to the note of argument says, “Would be made if the Court is persuaded by the Crown that the question as formulated can be construed as encompassing the issues in paragraph 8 above.” And paragraph 8 is what I have set out as, from my perspective enumerating the subordinate issues in what my Lord in the Chair for shorthand is calling Miss Zelter’s formulation.

LORD PROSSER: I do apologise, it is a gross over-simplification to call it the Zelter formulation, I thought it helped to focus the issue very well.

MR. MOYNIHAN: I’m of that view your Lordship. As far as that first strand is concerned I for my part am concerned and prepared to withdraw the objection to competency on the understanding that again it is a matter for your Lordships in the event how this matter is addressed, but on the understanding that question No. 2 will be addressed by me in the light of the issues summarised in paragraph 8 of my note of argument.

LORD PROSSER: Yes, so the better thing might be not so much to withdraw the question of competence but to hold it over to see whether in the end of the day we are able to treat it in that way, but if we felt able to treat it in that way you wouldn’t then be addressing the question.

MR. MOYNIHAN: Yes, in relation to that. I wish to have my cake and eat it too.

LORD PROSSER: We are trying to have our cake by reserving matters.

MR. MOYNIHAN: My Lord there is however a second matter your Lordships have not been addressed on which bears mention at this stage and it may be a matter which your Lordships also wish to reserve your position on. If your Lordships look at the note of argument for the Crown, what is set out as proposition 3 for the Crown on the second page of text my Lord.

LORD PROSSER: This is on necessity.

MR. MOYNIHAN: Defence is only available in very limited circumstances.

LORD PROSSER: That is out of necessity.

MR. MOYNIHAN: Yes. Your Lordships were yesterday addressed by Miss Zelter and others in relation to numbered paragraph 2 at the foot of that page, the manner in which the learned Sheriff dealt with the Defence.

LORD PROSSER: Yes.

MR. MOYNIHAN: What I am raising with your Lordships, and it arises directly out of what Miss Zelter has raised with your Lordships about undermining acquittal.

LORD PROSSER: Yes.

MR. MOYNIHAN: Is in fact the proposition immediately above that, numbered 1, it reads, “On no view of the facts narrated in the Sheriff’s report could the Court have legitimately left the Defence of necessity available for the jury’s consideration.”

My Lord at points in my learned friend Mr. Di Rollo’s submissions there have been observations, if not formal submissions, observations by him which I have been construing as directed to that question. And my submission is that a question posed, as in proposition (1) is incompetent for this reason, it directly questions the correctness of the acquittal.

LORD PROSSER: Not merely the procedural correctness of it upon which there might be a point to open its merits.

MR. MOYNIHAN: Yes my Lord.

LORD PROSSER: So what he should perhaps have said, on no view should it have been taken away from the jury, would that be all right, or would that still…

MR. MOYNIHAN: I would formulate it this way my Lord, if I step back, one is only too well aware that a Lord Advocate’s Reference, because it will question the proposition of law which has resulted in acquittal, if it is a case brought after acquittal, it will naturally be construed as either upholding or undermining the acquittal, it will naturally be open to that construction, and Section 123 of the Act tells us that the effect in law of any opinion of this Court is that it does not affect acquittal, or conviction, that is Section 123, sub section 5, so that is the effect in law.

Now my Lord what I am submitting to your Lordships is, and if I may use your Lordship in the Chair’s helpful analogy, from the clouds, question 2, I have to deal with, necessity arises under question No. 3, and for my part I am Amicus Curiae, I am not purporting to speak on behalf of anyone else, my position as Amicus Curiae, what I would invite your Lordships to do is answer question 3, namely proper bounds of defence of necessity, as a matter of generality but not…

LORD PROSSER: Sorry can you give me a moment I have to get that down.

MR. MOYNIHAN: Answer question 3 as a matter of generality to define in general the proper bounds of the defence of necessity.

LORD PROSSER: Yes.

MR. MOYNIHAN: But not, as this particular formulation, and it is in the note of argument not in the question, not to pass beyond that, to comment on the application of this general proposition to the evidence led at the trial.

LORD PROSSER: You say the argument goes beyond it, the question doesn’t, and therefore in the case of that question at least my phrase about in the clouds is wrong but one would steer clear of how necessity should have been dealt with in the actual trial, not merely would one not say it had to be taken away from the jury, one would likewise not even say it should have been left to the jury.

LORD PENROSE: Is there middle ground, one might make observations of a general nature on the defence of necessity to make comment on the procedures that ought to be followed where it is relevant. There does seem to me there is a possible middle ground that would focus on the abstract.

MR. MOYNIHAN: I have no difficulty with that.

LORD PROSSER: For myself I was quite relieved that the point was mentioned at least here because it had not actually struck me …(indistinct)…

MR. MOYNIHAN: My Lord it is a question of balance and we are drawing a fine line and my submissions will inevitably – and this is why your Lordships may wish to simply hear this and reserve the matter – my submissions will inevitably touch upon the constituent elements of the defence of necessity and there is in fact not much difference between my position and that of the Crown.

Where the problem may arise is in considering whether or not those criteria were satisfied on the evidence in this case. And I say that for two reasons, one practical and one legal. The practical reason is that your Lordships will be aware that we have transcripts of the evidence of the three experts, we do not have transcripts of the evidence of the remaining witnesses and in particular we don’t have the evidence of Miss Zelter.

LORD PROSSER: As she has pointed out.

MR. MOYNIHAN: I understand, and again my Lord this is where I am speaking for myself and your Lordship will ask others what they make of this. I understand from conversation with Miss Zelter, though the Sheriff’s report is lengthy it is inevitably not exhaustive and accordingly there may be difficulty in your Lordship’s considering the factual application of the Defence to the circumstances of this case. So that is the practical difficulty, and my Lord in the Chair will be aware my learned friend Mr. Mayer’s petition to the nobile officium had asked, as one of its parts, that all of the evidence at the trial be transcribed, and that has not been done.

The legal reason I ask…

LORD PROSSER: It has merely not been done, it has not been sought in any other way, and I think while that Petition was left open we have reached the stage at least it could have been raised.

MR. MOYNIHAN: I am the architect of the other way, and what I am now acknowledging is that while the scheme, which I am the architect of, may have resulted in your Lordships suggesting that question 2 be answered in a more open way, my scheme has in fact – though it might have answered the problem in relation to question 2, it has not answered the problem posed by question 3. I concede that and I do acknowledge it has been me, and my plea to competency which has led to the development of the petition to the nobile officium, that problem is there, that is a practical problem.

So far as the legal problem is concerned it is simply that while I acknowledge that the manner in which your Lordships define the defence of necessity may lead to any informed …(indistinct)… whether acquittal was correct or not, that is inevitable.

In my respectful submission your Lordships should guard against a question such as that posed in the note of argument, which does not just give a signal to the informed reader, but in fact is in conflict with a ruling by this Court that the acquittal was wrong, and I accept in particular my Lord said there is a very fine distinction between the two, and all I am asking is we be aware of this distinction and in due course, or now if your Lordships wish, or in due course submissions will be made.

LORD PROSSER: It is a good reminder one must really see oneself as answering questions of law which are general rather than interfering with acquittals, not thinking – does this reverse. But I am doubtful at the moment whether one could really start defining necessity in a proper and useful way without as it were needing the raw material in this particular case as the starting point, and it is certainly not going to be very good by saying things like deleting a word and putting in another word which is in fact a generalisation.

If there is a single solution to this…

MR. MOYNIHAN: My Lord subject to judicial consideration, namely the absence of what might be relevant transcripts I am not seeking to impress a particular solution upon your Lordship, because in fact it may be a point in relation to which I am at odds with the Crown. So I simply flag this up as a matter on which I would wish to reserve my position.

LORD PROSSER: And of course it is a matter on which we have only heard the Crown approach to necessity at the moment, it might be much clearer after we have heard the Respondents and their approach to necessity, it might be much clearer how it will be handled.

MR. MOYNIHAN: Indeed so, it is very much a question for your Lordships how this particular issue is addressed. For my part I am content to have raised it and if your Lordships so please to reserve my position.

LORD PROSSER: I think we should see what other people have to say.

MR. ANDERSON: My Lord the Respondent Roder has a liberal interpretation of question 2, it does not cure the defect which arises initially here, that is the competence of the Lord Advocate to frame the questions.

The problem with a liberal interpretation, the specific duty the Court has to answer question 2 in terms in which the Lord Advocate has framed…

LORD PROSSER: I don’t think I understand that because one wouldn’t answer it if one said yes to…(indistinct)…these would be answers particularly if the question is read in the model context.

MR. ANDERSON: The problem there my Lord for the Second Respondent is question 2 should contain no reference to possession and should contain risk of use and threat. If the Court were to literally interpret possession as including threat and use and answer the question in terms, the Court would be answering a different question to the one posed by the Lord Advocate.

LORD PROSSER: I understand the argument but I don’t think it is necessarily right, the question might be to answer when possession is legal and when it isn’t and the answer is perhaps it is legal if it is in store but not legal if it is weapons deployed and so forth. I take the point you are asking us not to answer question 2.

MR. ANDERSON: I am asking the Court to find the Lord Advocate had no competence to bring the reference in the first place, as framed, for the reasons I stated previously.

LORD PROSSER: But I was trying to get the practical sequence, if we uphold your argument…(indistinct)…

MR. ANDERSON: My Lord I would submit the Court would have to refuse to answer all the questions.

LORD PROSSER: In fact all four.

MR. ANDERSON: All four of them.

LORD PROSSER: And therefore the Court would in fact say nothing.

MR. ANDERSON: That’s correct, well they would have to reject the Referral.

LORD PROSSER: So on my Zelter strands of argument I think Miss Zelter is saying strand 1 and you are saying strand 2.

MR. ANDERSON: There is one issue, the present proceedings are more of a nature under administration of law where a member of the Executive requests an opinion at law from the Court in order to carry out a function in the future, that’s correct my Lord. It is even more difficult for the Court to narrowly or widely interpret the question because the Executive, a member of the Executive has specifically put questions for a particular purpose.

LORD PROSSER: It is very familiar in ordinary civil procedure if one has for example several craves the Court is asked to answer questions, very frequently answer them in very full ways, which it could do by way of qualifications, reservations, conditions, there is nothing very novel about that in civil as well as administrative law.

MR. ANDERSON: In this situation there is no dispute here either in terms of the criminal law or otherwise, the Court is merely carrying out investigation to inform, or give an opinion to a member of the Executive to enable him to fulfil his executive function.

LORD PROSSER: As soon as the questions have been referred and the Lord Advocate asks that they be answered in a given way then it is important that one has Respondents who may ask that they be answered in the opposite way, that seems to be close to a dispute.

MR. ANDERSON: My Lord it is like parties being called to a tribunal.

LORD PROSSER: Where does this lead us?

MR. ANDERSON: My Lord it leads us to the point the Court has no inherent powers to widen the question beyond the specific terms of reference.

LORD PROSSER: We are not talking of widening it, we are talking about what may be necessary to answer them intelligently, so if we are not allowed that’s all right, isn’t it.

MR. ANDERSON: The problem is if one were to, as your Lordship properly says, answer the question intelligently in the context of the case then those answers may not be one or two questions posed by the Crown especially in regard to question 2.

LORD PROSSER: I just said one might want to answer a question and to do so intelligently in the context of the case it might involve, much like answering any question in life, but I take your point, one hasn’t got perhaps power to widen it in terms of answering a question to which it doesn’t give rise.

MR. ANDERSON: That would be my point.

LORD PROSSER: That becomes a matter for us whether it gives rise to it or not.

MR. ANDERSON: My Lord the question would not give rise to use, deployment or threat.

LORD PROSSER: I have got that submission but if others are taking a different approach you would be content that we reserve dealing with your submission on that until a later stage.

MR. ANDERSON: That is so my Lord, it would be probably more appropriate from a procedural point of view.

LORD PROSSER: Thank you very much for notice of that, that would be one way of dealing with it, to reserve it to a later stage. Mr. O’Neill.

MR. O’NEILL: Obliged my Lord. When my Lord set out the two possible approaches…

LORD PROSSER: I certainly accept there may be others.

MR. O’NEILL: Indeed my Lord, I was going to follow that, my preference would be this procedure be continued to allow the real questions to be answered in the case, much as Miss Zelter has.

LORD PROSSER: Continued in the sense…

MR. O’NEILL: Apologies my Lord, yes to allow the real questions in the case to be addressed by the Court and ultimately answered, and my Lord in my submission those are what one might call the big questions, the matter of the question of legality of Trident, to its current use and deployment.

LORD PROSSER: Everything else is in a sense adjectival, these are what one might call substantive questions, whereas the points on human rights, or devolution issues are all essentially adjectival, about the way you do things rather than the thing being done.

MR. O’NEILL: Yes, although my Lord the human rights aspect may impinge on the matter raised by Mr. Moynihan in the sense it might not be appropriate to ask little questions, to answer the little questions which may impact on the actual acquittal of the Respondents.

LORD PROSSER: The adjectival questions may not be little, they are fundamental but they are recognisable.

MR. O’NEILL: I used little to mean specific, rather than unimportant.

LORD PROSSER: So you would just want us to reserve that kind of matter.

MR. O’NEILL: Indeed my Lord, to reserve this argument which I have set out in the statement of argument in relation to the impact of human rights considerations on the whole procedure.

LORD PROSSER: Thank you very much. I think the question which I think arises certainly for you and I think for all the Respondents is that some of the points under the devolution minutes, perhaps some of them are incorporated in the argument relating to the question of fair notice.

Now if there is anything that has been said by the Crown on which you feel you have not had sufficient notice we couldn’t really carry on regardless, if it was the kind of point which required to be cured by an adjournment. Do I take it there is no matter of that kind.

MR. O’NEILL: My Lord in terms of the actual Lord Advocate’s Reference questions the fair notice point does not arise because one has had notice of this and it is a question of proper interpretation of this, but in so far as there are subsidiary specific questions raised in the statement of argument, then my Lord the fair notice point I think may well bite there.

LORD PROSSER: But at any rate you are not saying there is any point in relation to fair notice in what has been said by Mr. Di Rollo, of a kind where it would help to have an adjournment now to consider it. It didn’t seem to me any of it was particularly out of…they were largely points you yourself have been narrating since Day 1.

MR. O’NEILL: Indeed so I am not asking for an adjournment.

MR. MURPHY: One or two observations I would like to add at this stage, consideration in respect of devolution issues. It seems to me my Lord the Court in the course of these proceedings, having quite clearly defined its jurisdiction must raise the issue whether there is any merit in the various devolution issues that have been raised.

So far as I am concerned what I have been given notice of is failure to amend the Reference, we have the failure to amend the Reference and that seems to have been dealt with in a procedural sense by your Lordships anticipating the possibility of asking questions which may naturally and directly follow from the principal questions asked, no-one seems to be complaining about that, that the proper issue isn’t focused, and some comment can be made in respect of that point. That can be dealt with in the same way, in the sense it now would appear the question in relation to threat of use may be something which could naturally arise from the question of possession in the context of the procedure which the Court has defined.

Failure to outline procedure in respect of the particular Reference is a question which the First Respondent raised. So the devolution issue which was raised really at the beginning of these proceedings on Monday was the failure to define the procedures in the Lord Advocate’s reference, and it seems to me that no-one is complaining about the procedures which your Lordships have set out and the way the case has been dealt with, whether or not as a devolution issue that truly is a live matter.

Finally the issue of the status of an acquittal, that I would submit in terms of the procedures which have been laid down is only an issue after the merits of the case have been decided, so that is a speculative prospective issue, and I don’t expect any answer to this whatsoever, but what I do my Lord is make an invitation through the Court to the Respondents to consider the issues and consider whether truly there is any devolution issue in this case.

LORD PROSSER: I think you are making an invitation not so much through the Court as directly, because I don’t think it would be for us to intervene in that at this stage, we have said that, although we would still be of the view we are content to reserve all matters.

MR. MURPHY: Of course there is a public interest point here in terms of expenses. LORD PROSSER: I wasn’t suggesting for a moment you had any personal issues in the matter, but that would be the practical result, you are only here as a party to these matters, devolution matters and so if any Respondents at any stage feel they can abandon the devolution minute there is a particular interest for the Advocate General in knowing that because you would cease to be a party, and we will just leave it at that, unless someone wants to leap up and say…no, no-one has leapt… Yes we are very grateful to all parties for what has been said. We think that the right answer is to carry on under reservation of all matters and all the adjectival matters as I have called them and we will just carry on.

So that puts the ball in your Court Miss Zelter.

MISS ZELTER: As an Accused in the original trial it is accepted that I have an interest in the outcome of the case and that I have a right to pursue that interest by taking an equal part in these proceedings.

LORD PROSSER: Is this in your written document?

MISS ZELTER: I will hand it up to you.

LORD PROSSER: Oh it is different.

MISS ZELTER: The bundle of Authorities should be there.

LORD PROSSER: You may have to be a little patient with us until we get ourselves sorted out, but thank you very much. So we have now got the written submission.

MISS ZELTER: Yes.

Miss Zelter continued reading her written submission.

1. INTRODUCTION

1(1)

As an accused in the original trial it is accepted that I have an interest in the outcome of the case and that I have a right to pursue that interest by taking an equal part in these proceedings. My role therefore, as first respondent, as a non-lawyer, and appearing in person, is to ensure that what I perceive to be my interests are put to the Court as best I can, for the Court to consider.

1(2)

I have written out my submissions and would like to read them directly to you for several reasons.

1(3)

Firstly, the Court has decided not to permit an official record to be taken of what is said in these proceedings ¹ – despite my objections ² . There may well be further legal proceedings at the European level and I therefore wish there to be no confusion about what I have put before this Court. I shall therefore read my submission word for word and hand it in officially to the Court with the supporting documentation and references.

1(4)

Secondly, I am not confident that I can ensure that my interests are fully covered or that justice can be done to my case if I do it in a less formal manner. I am not a confident speaker and therefore prefer to read my submissions, which I have carefully thought about in less intimidating surroundings, as was allowed at the original trial at Greenock.

1(5)

I would respectfully ask you to hear me through to the end.

1(6)

I would like to bring to your attention a quote from a former Attorney General under Churchill, a famous Scotsman called Sir David Maxwell-Fyfe K.C., who was the UK prosecutor at Nuremberg. He said, “The law is a living thing. It is not rigid and unalterable. Its purpose is to serve mankind, and it must change and grow to meet the changing needs of society. The needs of Europe today have no parallel in history.” ³ 1(7)

I suggest that this is as true today as it was 54 years ago.

1(8)

These proceedings, however cloaked in technical legal language, will relate to whether there is a right for ordinary citizens to try to prevent innocent people from being murdered.

1(9)

More precisely, they will determine whether the Scottish legal system allows ordinary people here in Scotland to try to prevent the “most serious crimes of concern to the international community as a whole” ⁴ – that is – crimes against humanity and war crimes.

 

Interjection by the Court at page 2, end of paragraph 1(9).

LORD PROSSER: I know you wanted to be allowed to go through without interruption, but where you identify references, if as you speak you want us to look at them no doubt you will indicate, if you want us to look at them as you go along will you say so.

MISS ZELTER: Because I am not familiar with these document perhaps you could indicate.

LORD PROSSER: I know you want to proceed without departing from your written text but if you will forgive us if there is something we feel we ought to pick out, or vice versa.

Miss Zelter continued reading her written submission from page 2 paragraph 1(10).

 

1(10)

What we will witness in this Court is whether the Scottish Judiciary have taken to heart, and mind, the lessons from the horrific experiences of ’total war’ in the Second World War and of the necessity of ensuring that State practices are kept within the spirit and rule of international humanitarian law.

1(11)

We will learn whether Scottish law can accommodate what is known as the Nuremberg Obligation, i.e. the obligation placed upon individuals by the 1^st Nuremberg Principle. ⁵ 1(12)

Let me proceed to 2. Answer 1 Or the context for this Lord Advocate’s Reference or to what is known as the

MATERIAL FACTS

2(1)

What follows is my account of the material facts as presented at Greenock. I will then indicate where this differs from the Lord Advocate’s Petition and why my version has important implications for the way the questions are answered.

2(2)

Three ordinary women from three different countries – myself, Angie Zelter from England, Ulla Roder from Denmark, and Ellen Moxley from Scotland – calling ourselves ’global citizens’ – acted to try to prevent one of the most horrendous crimes mankind has had to face. This crime is ongoing and we are still facing it today. It is the threat to kill millions of innocent people and possibly to extinguish life on this planet, by the continuing deployment of nuclear weapons, targeted at population centres at only a few minutes notice to fire. We tried to protect ourselves, and others, from the immediate and continuing threat of a nuclear holocaust, by doing what we could to prevent nuclear crime and we did this by disarming an essential link in the UK Trident nuclear weapon system. We completed our act – of what we called ’people’s disarmament’ – by breaking a vital link in the UK’s preparations for nuclear mass murder. We disarmed ’Maytime’, the floating laboratory on Loch Goil that is involved in maintaining the ability of Trident submarines to remain undetected whilst deploying under-water.

2(3)

We were part of a group, called Trident Ploughshares, which being smaller at that time then consisted of 143 people from 10 different countries who had taken a Pledge to Prevent Nuclear Crime ⁶ and who were also engaged in trying to prevent nuclear mass murder. We did this in the knowledge of our rights under international law to act as individuals to try to prevent the preparations for war crimes and crimes against humanity and in the exercise of our inherent rights of self-defence as individual members of humanity against the threat of planetary extinction.

2(4)

After the three of us had disabled ’Maytime’, we displayed our joint statement explaining fully why we were justified in taking action to prevent crime. In it we stated, and I refer here to Reference 6 at page 1 – which was a Greenock Defence Production, “We wish to make it quite clear that our actions are not politically motivated (although we realize they have a political dimension). Our actions are based primarily on the legal and ethical premise that the UK’s Trident nuclear weapon system is a system preparing for the mass murder of innocent civilians over untold generations and we believe that the Trident system is ethically unjustifiable as well as being unlawful in international law. As loving, feeling, human beings we feel responsible for trying to do everything in our power to prevent the Trident system from being able to operate with the proviso that our actions are safe, nonviolent, open and accountable.” ⁷ 2(5)

This joint statement, which was a production in the Greenock Trial, also outlined why the 100 kiloton Trident nuclear warheads could never be used in a discriminating way against military targets but were so powerful they would inevitably cause mass destruction of protected people, places and environment and that this destruction could not be limited in time or place and would constitute a major breach of the Geneva Conventions amongst other international law. The statement also explained that in June 1999 all three of our countries as part of NATO were at war in the Balkans and that international tensions were very high, making the possibility of nuclear war or accident correspondingly higher than it had been.

2(6)

After disarming ’Maytime’ we awaited the arrival of the police in order to explain fully what we had done and why we had done it. We acted peacefully, nonviolently, safely and accountably at all times. We acted in the knowledge that the only effective remedy open to us to prevent a nuclear holocaust was to join with other ’global citizens’ in an effort to enforce the law ourselves as the government, judiciary, police and other institutions of the State were not willing to do it themselves, despite high level delegations asking them to do so.

2(7)

At no time did we deny the damage caused to the equipment on Maytime that is listed in the indictment. At all times we consistently maintained that our acts were justified because we were trying to prevent preparations for indiscriminate attack and were upholding international and Scots law. This is borne out by the documents that were presented to the Greenock Court by both sides and which included copies of the joint statement left in Maytime, the transcripts of recordings of the police interviews and bail hearings and our testimony from the witness box.

2(8)

After spending four months on remand and a further month in prison whilst arguing our case at Greenock Sheriff Court, we were acquitted of all charges of malicious mischief and theft of equipment.

2(9)

Our defence was that we were engaged in crime prevention through the disarmament of illegal and criminal weapons of mass destruction and that we were acting out of absolute necessity.

2(10)

We were acquitted on the grounds that our view was a reasonable one and arguable in a court of law and that there was no criminal intent in our action because it was based on a sincere belief, backed up by objective evidence, that we were acting against a continuing criminal conspiracy to contravene international humanitarian law, or in the words of Sheriff Gimblett:-

2(11)

“the three accused took the view that if it was illegal, and given the horrendous nature of nuclear weapons, that they had an obligation in terms of international law, never mind morally to do the little they could to stop … the deployment and use of nuclear weapons in a situation which could be construed as a threat. They were not objecting to the (possession) [Note. Correction] per se. It follows I think that if I consider that Ms Zelter, Ms Roder and Ms Moxley were justified in the first leg of their defence, namely the international law defence, and had given that as their principal reason for their actions that the Crown had a duty to rebut that defence. They have not done so and accordingly I uphold the three defence submissions”. ⁸ 2(12)

I would like to emphasise here that Sheriff Gimblett accepted that we were not acting against “possession per se” but against the deployment of Trident. See her comments in her Report at page 2 where she says, “this trial was not concerned with the possession of nuclear weapons” and on page 38 where she reports on my evidence where I said what I “was talking about was the active deployment of loaded Trident submarines” and that “What was at issue in this trial was the active deployment and the moving them around in submarines that was seen as a threat.” ⁹ 2(13)

Since the acquittal there has been a political furore and demands that our acquittal be appealed. As an Appeal was not possible the State stepped in and the Lord Advocate instituted these rare Reference proceedings. If we had been preventing an ordinary, every-day kind of murder it is very unlikely that we would now be facing such proceedings. Hidden under the guise of official and legitimate self-defence and bolstered by people’s very understandable fears are preparations for the mass murder of innocents. I hope that the Court will be able to see this clearly and not be seduced by the ’deterrence myth’.

2(14)

Our acts of lawful disarmament are not occurring in a vacuum. They occur in the context of 772 arrests of Trident Ploughshares Pledgers to date, a back-log of cases before the lower Scottish courts, and a commitment on our behalf to continue with our attempts to prevent nuclear crime. They occur in a wider context where citizens in all of the 8 nuclear weapons states are engaged in resistance to the nuclear crime in one way or another and many of whom are facing various judicial proceedings. They occur in the international context of 114 States continuing condemnation of the nuclear weapons states’ refusal to honour their commitments under the Non-Proliferation Treaty and to immediately disarm their nuclear weapons. ¹⁰ 2(15)

Thus there is a political context to this LAR hearing of which the Court should be aware. I say this advisedly in the light of the specific questions that have been chosen for the Court to discuss and the deliberate refusal, by the Crown, to ask the Court to look at the most serious of the questions that was raised by the Greenock acquittal – the question of the legality of Trident itself and why Scotland is allowing 100 kiloton nuclear warheads to be based, serviced and deployed from bases in Scotland in clear contravention of the basic human rights of the earth’s peoples. If this question could be examined impartially by the Court then People’s Disarmament would probably be unnecessary. I have asked on numerous occasions for this question to be raised at this hearing but to no avail. I have been told that it is for the Lord Advocate alone to determine which questions are asked of the Court. ¹¹ 2(16)

I was heartened to see in the Sheriff’s Report that she also considers it “right and proper that all matters raised by this trial … should be considered’. She specifically included ’the question of what is meant by the threat and use and deployment” of nuclear weapons. ¹² 2(17)

I think it is relevant, at this point, to remind the Court that the Lord Advocate is a political appointee and a member of the Executive of a major nuclear weapon state. The official policy of the UK is one of possession, deployment and threat to use the 100 kiloton nuclear warheads on Trident. If our argument is correct that Trident is criminal then everyone within the Executive and Military, having individual responsibility under international law, is actually aiding, abetting or otherwise assisting in the preparation for the commission of major crimes against humanity and war crimes.

2(18)

I will now make a few short comments about the

3. MATERIAL FACTS AS PRESENTED IN THE LORD ADVOCATE’S PETITION

3(1)

In my view these are partial and one-sided and do not reflect the facts as they emerged in the evidence given in the trial at Greenock.

3(2)

Perhaps the most invidious slant or interpretation of our actions on June 8^th 1999 is contained in the petition at 1(b) where it states that “The evidence established, inter alia, that the acts alleged against the pannels had been motivated by and carried out in furtherance of their opposition to nuclear weapons and in particular the Trident weapons system”. ¹³ 3(3)

In my view this is a complete distortion of the testimony that we gave and on which I was cross-questioned at Greenock. I utterly refute the innuendo that we were engaged in some kind of opposition or protest. I established in the witness box that in fact I was engaged in crime prevention through the disarmament of part of a complex system of illegal and criminal mass destruction.

3(4)

My intention and motivation was to seek to prevent the criminal threat or use of nuclear weapons in contravention of customary international law, and thus involved no criminal intent. There was evidence to this effect before the Court which the Sheriff was entitled to accept.

3(5)

In answer to a direct question from the PF on 13/10/99 in cross-examination I stated very clearly “I am not running a political campaign. I am trying to prevent nuclear crimes”. I presented evidence to show this and it was accepted by the Sheriff. The Sheriff reports my evidence given in cross-examination at page 32, “When asked if their aim was to influence and change government policy she replied “No”; she was trying to prevent any country in the world committing mass murder” and again at page 33 she “said that her action on 8 June was directly trying to prevent a crime.” ¹⁴ 3(6)

The Lord Advocate’s distorted interpretation of the evidence given at the trial is reflected in the wording of Question 2 which talks about the pursuit of objections to the UK’s nuclear weapons but I will come to that later.

3(7)

My position was and is that the threat or use of the nuclear warheads on the UK Trident weapon system that is currently deployed, is criminal under international law and that the U.K.’s reliance on Trident in its military posture amounts to a criminal conspiracy (along with other allied states) to carry out future war crimes and crimes against humanity in contravention of international humanitarian law.

3(8)

I presented from the witness box substantial evidence of my knowledge of the illegality and criminality of the current British nuclear weapon system and policies. The Sheriff gives an outline of this in her Report at pages 24 -28 but I think it is essential to summarise the arguments that I made there as they are crucial to the answering of the 4 questions. As you will appreciate there is a common theme underlying all four of the Lord Advocate’s questions – the legal status of Trident. This next section of my submission will therefore provide the overall context for answering all the questions and I will refer to it when I come to my answers to the Four Questions to avoid repetition.

4. SUMMARY OF THE LEGAL ARGUMENTS FOR THE CRIMINALITY OF BRITISH TRIDENT.

International Law and Nuclear Weapons 4(1)

The July 8^th 1996 Advisory Opinion of the International Court of Justice (ICJ), at para.75 ¹⁵ outlines the sources of international law as they relate to nuclear weapons.

4(2)

Advisory Opinions are intended to provide UN bodies guidance regarding legal issues and are not directly binding on the UN or its member States. However, the ICJ has authoritatively interpreted laws which States, including the UK, acknowledge they must follow, including humanitarian law and the UN Charter. I further contend, as I did at Greenock, that the Advisory Opinion is controlling because it is the authoritative articulation of customary international law on the legality of the use or threatened use of nuclear weapons. It is thus of exceptional relevance to this Court providing guidance on whether and in what circumstances the 100 kt nuclear warheads on Trident are in breach of international law.

4(3)

Moreover, a Times Law Report of 19 May 1999 shows that national courts must take cognisance of ICJ Advisory Opinions. The Report stated of another advisory opinion, ’The government of Malaysia was obliged to communicate the advisory opinion to the Malaysian courts in order that Malaysia’s international obligations be given effect’. ¹⁶ 4(4)

In my opinion the Advisory Opinion of July 8^th 1996 makes it quite clear that nuclear weapons would generally breach all of the following:

– The Declaration of St. Petersburg, 1868

because unnecessary suffering would be caused; [para.77]

 

Miss Zelter departed from reading her written submission on page 9, paragraph 4(4) after the first bullet point.

MISS ZELTER: If it is useful I could give you an indication where the ICJ Advisory Opinion has backed up that statement, for instance you can also find it in paragraph 77 of the ICJ Advisory Opinion.

LORD PROSSER: That is a useful cross-reference.

Miss Zelter continued reading the next bullet point in paragraph 4(4).

 

– The Martens Clause, 1899

because humanity would not remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience; [para.78 and 87]

 

MISS ZELTER: We can cross-reference that with paragraph 78 of the ICJ Advisory Opinion. The Hague Conventions 1907 because a necessary suffering would be caused and there would be no guarantee of the inviolability of neutral nations, cross-reference paragraph 78 of ICJ. The UN Charter, 1945 because such a use of force would not be proportionate. Again the reference is paragraph 42 of the ICJ.

Miss Zelter continued reading her written submission from the top of page 10 to the end of the second bullet point.

 

– The Hague Conventions, 1907

because unnecessary suffering would be caused and there would be no guarantee of the inviolability of neutral nations; [para.77] 

– The U.N. Charter, 1945

because such a use of force would not be proportionate; [para.35 and 42] 

– The Universal Declaration of Human Rights, 1948

because long-lasting radioactive contamination would interfere with innocent people’s inherent right to life and health; 

– The Geneva Conventions, 1949

(which has been brought directly into UK law through the 1957 Geneva Conventions Act) because protection of the wounded, sick, the infirm, expectant mothers, civilian hospitals and health workers would not be ensured; [para.81]

 

MISS ZELTER: ICJ cross-reference paragraph 81.

Miss Zelter read the next bullet point.

 

– The Protocols Additional to the Geneva Conventions, 1977

(which have also been directly brought into UK law through the 1995 Geneva Conventions (Amendments) Act) because there would be massive incidental losses of civilian lives and widespread, long-term and severe damage to the environment. [para.84 and also look closely at Part IV, Article 48 of Protocol 1]

 

MISS ZELTER: Cross-reference to ICJ paragraph 84. I think it is probably important in case anybody else does it, to refer to these Protocols. I was assuming you would actually, as it is part of the UK law, actually have Protocols, additional to the Geneva Conventions. Do you have them?

LORD PROSSER: They we won’t have been provided for us by the Court.

MISS ZELTER: What I can do is offer them up when I have read it out.

LORD PROSSER: They are available somewhere, they certainly should be, we shouldn’t have to have your copy, they have been put out in book form, have they?

MR. MENZIES: The Crown can arrange for them to be copied at the end of the day.

LORD PROSSER: Yes the Crown can do that, there may be no real problem.

MISS ZELTER: These Protocols are brought directly into UK law by the Geneva Conventions Amendments Act and the whole Protocols form a schedule under that Act, and part 1, under general provisions.

LORD PROSSER: These are brought in by 1957.

MISS ZELTER: No these are Protocols, 1977 Protocols and they form part of the 1995 Geneva Conventions Amendments Act.

LORD PROSSER: I beg your pardon.

MISS ZELTER: Part 1 Article 1, paragraph 2, the modern formulation if you like of the Martens Clause and it says in cases not covered by the Protocol or other international agreements civilians…(indistinct)…remain under the protection and authority of international law derived or established… (indistinct)…and part 4, Article 48, in order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

If you go to Article 51 where it talks about protection of a civilian population it says civilian populations and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to these protections the following rules which are additional to other applicable rules of international law shall be observed in all circumstances. And I will be arguing to the effect even in self-defence that occurs, the civilian population as such, as well as individual civilians shall not be the object of attacks or threats.

Indiscriminate attacks are prohibited, indiscriminate attacks are those which are not directed at a specific military objective; those which employ a method of combat which cannot be directed at a specific military objective, or those which employ a method of combat the effects of which cannot be limited as required by this Protocol and consequently in each such case are of a nature to strike military objectives and civilians or civilian objects without distinction.

LORD PROSSER: That is all from Article 51.

MISS ZELTER: That is all from Article 51 and the fifth part of the Article, among others, the following types of attacks are to be considered as indiscriminate; and attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area containing a similar concentration of civilians, or civilian objects; and, an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

These attacks against civilian populations, or civilians by way of reprisals are prohibited. Any violation of the prohibition shall not release parties to the conflict from legal obligations with respect to civilian populations and civilians, including the obligation to take precautionary methods provided for in Article 57. And it goes on and I won’t read, about general protection of civilian objects etc., etc.

LORD PROSSER: The primary ones are those you read out, the absolute possibility or legality of things that are incapable of discriminating.

MISS ZELTER: That’s right.

Miss Zelter continued reading her written submission on page 10 at paragraph 4(5).

 

4(5)

Serious violations of these treaties and declarations are defined as criminal acts under the

Nuremberg Principles, 1946

in that Principle 6 defines crimes against peace, war crimes and crimes against humanity. Specifically, Nuremberg Principle VI (a) defines Crimes against Peace as “Planning, preparation, initiation or waging of … a war in violation of international treaties, agreements or assurances … Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned”. Nuremberg Principle VI (b) defines War Crimes as “violations of the laws or customs of war” and Nuremberg Principle VI (c) defines Crimes against Humanity as “murder, extermination … and other inhumane acts done against any civilian population … when … carried on in execution of, or in connection with any crime against peace or any war crime”. ¹⁷ 4(6) 

In addition

The Non-Proliferation Treaty (NPT), 1968

is being violated now, in that the United Kingdom is not fulfilling its obligation to negotiate in good faith a nuclear disarmament. Cardinal Principles 4(7) 

Charles Moxley has analysed the various rules of international law applicable to a consideration of whether Trident is in breach of international law. ¹⁸ These can be summarised thus: a) Rule of Proportionality (p39-52): at page 39, “The Rule of Proportionality….. prohibits the use of a weapon if its probable effects on combatant or non-combatant persons or objects would likely be disproportionate to the value of the anticipated military objective”. (At 39-40)

b) Rule of Necessity (p52-67): at page 52, “The Rule of Necessity provides that, in conducting a military operation, a State, even as against its adversary’s forces and property, may use only such a level of force as is “necessary” or “imperatively necessary” to achieve its military objective and that any additional level of force is prohibited as unlawful. The State must have an explicit military objective justifying each particular use of force in armed conflict and there must be a reasonable connection between the objective and the use of the particular force in question. If a military operation cannot satisfy this requirement, the State must use a lower level of force or refrain from the operation altogether”. c) Rule of Moderation: (p63-64): at page 63, “The law of war recognises a general principle of moderation, expressed in the Hague Regulations by the maxim that “the right of belligerents to adopt means of injuring the enemy is not unlimited” (Article 22). This principle is a basis of and generally overlaps with the principles of necessity and proportionality”. d) Rule of Discrimination (p64-66) including

the Requirement of Controllability: (p66-69): Rule of Discrimination: at page 64, “The Rule of Discrimination prohibits the use of a weapon that cannot discriminate in its effects between military and civilian targets. This is a rule designed to protect civilian persons and objects. The law recognises that the use of a particular weapon against a military target may cause unintended collateral or incidental damage to civilian persons and objects and permits such damage, subject to compliance with the other applicable rules of law, including the principle of proportionality. However, the weapon must have been intended for – and capable of being controlled and directed against – a military target, and the civilian damage must have been unintended and collateral or incidental”.

As to the requirement of controllability: at page 66, “On the question of the controllability of nuclear weapons, the issue becomes central as to whether the controllability element of the discrimination rule requires only that the attacking State be capable of delivering the weapons accurately to a particular military target, or whether it also requires that the State be able to control the weapon’s effects, including radiation, upon delivery”. e) Rule of Civilian Immunity (p69-76): at page 69, “Occupying much the same ground as the Rules of Discrimination and Proportionality is the Rule of Civilian Immunity. The law of armed conflict prohibits “the directing of attacks against civilians, making them immune from such attack”.

4(8)

Moxley’s analysis of these fundamental principles of international law and the ICJ advisory opinion clearly show that Trident, as a high yield nuclear weapon system, is in breach of all of these rules. Moreover, Trident is also in breach of the two cardinal principles of international law that the ICJ, at para.78, details as being contained in the above “fabric of humanitarian law”. It explains that “The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants. States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use”.

4(9)

The United Kingdom confirmed these fundamental, intransgressible rules as customary laws at the Nuremberg International Military Tribunal and the Tokyo Tribunals in which it was involved, and supported them strongly in the United Nations Security Council creation of the International Criminal Tribunal for the former Yugoslavia and in the International Criminal Tribunal for Rwanda.

4(10)

In other words the international humanitarian principles used to assess the legality of nuclear weapons are well established in the international legal order. These customary rules are binding on all states at all times. Moreover many of these customary law principles have now been brought directly into UK Statute Law through the Geneva Conventions Act 1957 and the Geneva Conventions (Amendments) Act 1995. General Illegality 4(11)

The whole text and tenor of the ICJ Advisory Opinion make it arguable that even in extremis, any threat or use of nuclear weapons is likely to be unlawful.

  The ICJ held, at para.79, that the “fundamental rules (of humanitarian law) are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (emphasis added).

  The ICJ specified, at para.105 2E, 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”.

  The ICJ also envisioned, at para.94, no circumstances in which the use of nuclear weapons would be compatible with international law saying “none of the states advocating the legality of the use of nuclear weapons under certain circumstances, including the ’clean’ use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield weapons”.

  The ICJ acknowledged, at para.36, the “unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come”.

  The ICJ refers, at para.95, to “the principles and rules of law applicable in armed conflict at the heart of which is the overriding consideration of humanity” and states “In view of the unique characteristics of nuclear weapons, … the use of such weapons in fact seems scarcely reconcilable with respect for such requirements” (emphasis added).

In conclusion, the ICJ Advisory Opinion, as a whole, gives a strong presumption of illegality. Of the fourteen Judges sitting, ten determined that the use of nuclear weapons would generally be unlawful. Further, six Judges were of the view that all uses of nuclear weapons would be per se unlawful. Possible Lawful Use? 4(12)

The only possible loophole that may have been left by the ICJ was when the Court stated, at para.105 2E, “However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.

4(13)

However, it is clear that this possible exception cannot apply to the British Trident 100 kt nuclear warheads. If a nuclear weapon existed that was of low yield and where its effects could be confined to a particular military target then it might be that its use would not be unlawful under this exception of self-defence. The point is well put by the dissenting opinion of Judge Shahabuddeen at page 34-35, where he says, “An ’extreme circumstance of self-defense, in which the very survival of a State would be at stake’….is the main circumstance in which the proponents of legality advance a claim to a right to use nuclear weapons. This is so for the reason that, assuming that the use of nuclear weapons is lawful, the nature of the weapons, combined with the limitations imposed by the requirements of necessity and proportionality which condition the exercise of the right of self-defense, will serve to confine their lawful right to that ’extreme circumstance’. It follow that to hold that humanitarian law does not apply to the use of nuclear weapons in the main circumstances in which a claim of a right of use is advanced is to uphold the substance of thesis that humanitarian law does not apply at all to the use of nuclear weapons. That view has long been discarded; as the court itself recalls, the NWS [Nuclear Weapons States] themselves do not advocate it. I am not persuaded that a disfavoured thesis can be brought back to an exception based on self-defense.” What is beyond doubt is that Trident could never be justified in an “extreme circumstance of the self-defence” because 100 kt warheads would always fail the test of proportionality, necessity, controllability, discrimination, and civilian immunity. Most important of all it breaches the cardinal, or intransgressible, rule of humanitarian law in its inability to discriminate between military and civilian targets. I will return to the question of “extreme circumstances of self-defence’ in more detail later.

4(14)

Paragraph 2E of 105 cannot be detached from the other five paragraphs 2A,B,C,D and F and the ICJ’s formal conclusions in this paragraph must be read in the light of the Advisory Opinion as a whole. Paragraph 104 states, “the Court emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraph 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.” 4(15)

Paragraph 2E of 105 was agreed only with the casting vote of President Bedjaoui which made the vote 8 to 7. Judge Bedjaoui, President of the ICJ, specifically wrote his Declaration to explain why he used his casting vote for the adoption of paragraph 105 2E. At para.11 of his Declaration he states very clearly, “I cannot sufficiently emphasize that the Court’s inability to go beyond this statement of the situation can in no way be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons”. He also stated, at para.9, that “at no time did the Court lose sight of the fact that nuclear weapons constitute a potential means of destruction of all mankind”. At para.20 he says, “By its very nature the nuclear weapon, a blind weapon, therefore has a destabilizing effect on humanitarian law, the law of discrimination which regulates discernment in the use of weapons”. ¹⁹ 4(16)

It is essential to assess the Court’s replies in the light of the judges appended statements, many of which were very detailed and closely reasoned. A good summary can be found in Chapter 3 of Charles Moxley’s useful book ’Nuclear Weapons and International Law in the Post Cold War World’. As he pointed out on page 158 ’Three of the dissenting judges – Judges Shahabuddeen, Koroma and Weeramantry – did so on the basis that the Court’s decision did not go far enough: They concluded that all uses or threatened uses of nuclear weapons would be per se unlawful. This brings to ten the number of judges determining that the use of nuclear weapons would generally be unlawful, a substantial majority on this overriding point’. ²⁰

 

Interjection by the Court on page 14 at the end of paragraph 4(16).

LORD PROSSER: Sorry to interrupt, the last sentence of the previous paragraph says, the Court’s opinion and those independent judges did not dispose of the issue, but they certainly are the groundwork for future analysis, continuing evaluation of the law. Is that something that you accept, or if you don’t want to deal with it just now you can come back and deal with it at the end.

MISS ZELTER: Paragraph?

LORD PROSSER: The previous paragraph, 158.

MISS ZELTER: I will come back to that.

LORD PROSSER: The top paragraph, 158, the last sentence.

Miss Zelter continued reading from her written submission at the top of page 15.

Illegality of the United Kingdom’s Nuclear Weapons 4(17) 

The ICJ was asked to consider a general question and did not have the “elements of facts at its disposal” to enable it to be more specific. However, if we apply the principles and rules of international law confirmed by the ICJ to the Trident system presently deployed, along with the current U.K. deterrence policy as outlined in the Strategic Defence Review of 1998 and the NATO Strategic Concept Document, and place this within the context of the destructive capacity of the warheads and their likely targets then it is quite clear that Trident is unlawful.

4(18)

As we established at Greenock through the expert witnesses, British Trident nuclear warheads are 100 to 120 kilotons each – that is around 8 to 10 times larger than the ones used at Hiroshima and Nagasaki ²¹ – and have assigned to them military targets in and around Moscow. ²² Such use of these particular nuclear weapons could not distinguish between civilian and military targets, nor are they intended to do so. Indeed it is a nonsense to suggest that a nuclear bomb 8 times larger than the Hiroshima bomb could possibly do so. The reason nuclear weapons are targeted in this way is to try to deter war by threatening mass destruction. The tragic flaw in this logic being that if nuclear deterrence fails and the United Kingdom’s bluff is called, the threat of mass destruction must be carried out. It follows that the purpose of Trident is to terrorise and to create “incalculable and unacceptable” risks, just as the NATO Strategic Concept Document specifies. ²³ Whilst politicians and others fudge the issue, the very point of “nuclear deterrence” is to threaten mass destruction.

4(19)

It was submitted at Greenock that the British Trident system is an immediate and ongoing danger to life on Earth, a threat to international peace and specifically unlawful as a breach of the intransgressible rules of humanitarian law as expressed by the ICJ. I continue to submit that we are all still in imminent danger of extinction. As our expert witness, Professor Jack Boag, so graphically explained at Greenock, the sword of Damocles remains perilously over our heads. Self-Defence 4(20)

The ICJ held, at para.42, that “a use of force that is proportionate under the law of self-defence must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law”.

4(21)

The main stumbling block for the United Kingdom can be found by examining the oral presentation given by Sir Nicholas Lyell to the ICJ on November 15, 1995. This illustrates the mind-set of a state so used to the thinking behind nuclear deterrence that it has forgotten what international humanitarian law is about. After admitting on page 45 that “there is no doubt that the customary law of war does prohibit some uses of nuclear weapons, just as it prohibits some uses of all types of weapons”, he then undermines this by elaborating a situation in which states are faced with invasion by overwhelming enemy forces: “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? Unless it is being suggested that there comes a point when the victim of aggression is no longer permitted to defend itself because of the degree of suffering which defensive measures will inflict”. ²⁴ 4(22)

Yet this is the point of international humanitarian law. It is intended to limit the terrible effects of war and to ensure that there is a world left after a conflict ends. This means self-restraint even in the midst of justified self-defence.

4(23)

According to the President of the Court, Judge Bedjaoui, “self-defence – if exercised in extreme circumstances in which the very survival of a State is in question – cannot engender a situation in which a State would exonerate itself from compliance with ’intransgressible’ norms of international humanitarian law. In certain circumstances, therefore, a relentless opposition can arise, a head on collision of fundamental principles, neither one of which can be reduced to the other. The fact remains that the use of nuclear weapons by a State in circumstances in which its survival is at stake risks in its turn endangering the survival of all mankind, precisely because of the inextricable link between terror and escalation in the use of such weapons. It would thus be quite foolhardy unhesitatingly to set the survival of a State above all other considerations, in particular above the survival of mankind itself”. ²⁵

 

Interjection by the Court on page 16 at the end of paragraph 4(23).

LORD PROSSER: Can I just, I find the concept of survival of the State rather uncertain. Does it merely mean, it is not about destruction of the population, it is merely saying we want to remain as some kind of State and it would be virtually the end of the world if we could no longer be such, that is the kind of survival of the State, it is not the universal destruction of the population.

MISS ZELTER: And there are some dissenting opinions go into that in some detail.

LORD PROSSER: Just going back to a point I raised earlier, those individual judges did not discuss the issue but they certainly lay the groundwork for further analysis continuing.

MISS ZELTER: What we have is the ICJ Opinion in general looking at nuclear weapons and if you take the principles in the ICJ Opinion and lay them side by side with the effects of Trident it becomes very clear, and this is one thing we tried to do at Greenock, with the expert witnesses, lay down what the effects of Trident were, looking at the principles of international law.

LORD PROSSER: But you were looking at other opinions which effectively go beyond continuing evaluation and so forth which actually establish a relation to Trident…(indistinct)…

MISS ZELTER: And moves are afoot to actually take some steps…(indistinct)… The problem is of course there is a lot of pressure being put on States, like there is a lot of pressure put on New Zealand when it tried to…(indistinct)…

LORD PROSSER: That leaves open the question whether these become a rule of international law, well if you are coming back to that.

Miss Zelter continued reading from her written submission at page 16 paragraph 4(24).

 

4(24)

As Professor Christopher Greenwood Q.C. who represented the United Kingdom at the hearings before the ICJ, has observed, “To allow the necessities of self-defence to override the principles of humanitarian law would put at risk all the progress in that law which has been made over the last hundred years or so”. ²⁶ 4(25)

The “Humanitarian Law” as it is known as – that States must never make civilians the object of attack and must consequently never “use weapons that are incapable of distinguishing between civilian and military targets” ²⁷ is reflected in Article 48 of the Additional Protocol 1 of 1977 to the Geneva Conventions of 1949, and various Commentaries of the International Committee of the Red Cross. These sources have been recognised by the House of Lords in R v. Ministry of Defence, ex p Walker at page 812B. ²⁸ 4(26)

Article 48 requires that parties to any conflict “shall at all times distinguish between civilian populations and combatants and between civilian objectives and military objectives”. ²⁹ 4(27)

The International Committee of the Red Cross 1987 commentary states, “The basic rule of protection and distinction is confirmed in this article. It is the foundation on which the codification of the laws and customs of war rests: the civilian population and civilian objects must be respected and protected in armed conflict, and for this purpose they must be distinguished from combatants and military objectives. The entire system established in The Hague in 1899 and 1907 and in Geneva from 1864-1977 is founded on this rule of customary law.” ³⁰ 4(28)

The significance of the Humanitarian Rule for the deployment of British Trident Nuclear weapons is not that all nuclear weapons are prohibited as such, though they will generally be contrary to international law; nor, necessarily, that there can be no use of smaller, low yield, tactical nuclear weapons yet to be invented; or that there could be no policy of some kinds of nuclear deterrence; or no reservation for use in an extreme circumstance of self-defence in which the very survival of the State would be at stake. The point is that the Humanitarian Rule governs any such weapons or uses. Any low yield weapon, or deterrence/self-defence policy must comply with the Humanitarian Rule; any weapon or use which cannot comply is unlawful. For the Rule is a “cardinal”, “intransgressible” rule.

4(29)

If you take into account the blast, heat and radioactive effects of the detonation of a 100 kiloton nuclear warhead, especially in view of the fact that radioactive effects cannot be contained in either space or time, the use of even a single British Trident warhead in any circumstance, whether a first or second use and whether targeted against civilian populations or military objectives, would inevitably violate the prohibitions on the infliction of unnecessary suffering and indiscriminate harm as well as the rule of proportionality including with respect to the environment. Further, since the UK deploys its nuclear forces in a state of readiness for use pursuant to a declared policy contemplating use of nuclear weapons in a variety of circumstances, including first use, the deployment of Trident warheads is a threat in violation of humanitarian and other international law.

4(30)

There is extensive literature on the intransgressible rules of humanitarian law, nuclear weapons and the ICJ Advisory Opinion. I am presenting only a summary here. But I would like to bring to your attention a useful recent paper prepared in 1999 by the International Committee of the Red Cross which clearly equates “the use of indiscriminate weapons with a deliberate attack upon civilians”. ³¹ 4(31)

The categorical nature of the principle protecting civilians was recently affirmed by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in a decision reconfirming Milan Martic’s indictment for ordering rocket attacks on Zagreb which killed and wounded civilians. Applying humanitarian law including Article 1 common to all Geneva Conventions, which sets forth minimum standards of customary international law, the Trial Chamber stated that “no circumstances would legitimize an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party”. ³² 4(32)

Many citizens and organisations have asked for examples of what the Government would consider to be a lawful use of its Trident nuclear weapons. They have never been given a straight answer. This is not surprising since, simply put, each Trident warhead is a potential holocaust. Instead, the government states that “Maintaining a degree of uncertainty about our precise capabilities is a key element of a credible minimum deterrent. It is precisely to retain this degree of uncertainty and so sustain our minimum deterrent that secrecy must be maintained in this area.” ³³ But hiding behind this veil of secrecy allows the fudging and crooked thinking to continue.

4(33)

The fact remains that Trident nuclear weapons are being used to frighten and intimidate and to threaten mass destruction. This is unlawful. There might conceivably be some uses of a one-kiloton nuclear warhead targeted on military forces in the middle of an ocean, or at a tank in the middle of a desert, which might be considered lawful, but conventional weapons would suffice for such objectives without carrying the unconscionable risk of nuclear escalation. This is because according to the ICJ’s Advisory Opinion, the use and threat of nuclear weapons are illegal, save possibly in an extreme circumstance of self-defence in which the very survival of a State is at stake; in other words, where the State is facing annihilation. Unless such in extremis circumstances exist, the use and threat of nuclear weapons are illegal.

4(34)

Besides which, this is not what Trident is configured to do. If one looks at the warheads currently deployed on British Trident submarines then you can see that the United Kingdom has not reduced all its warheads to one kiloton or below, nor has it separated itself from joint NATO and US plans and strategies and their integrated targeting structures. Moreover, most, if not all, targets envisaged by the Ministry of Defence are in the vicinity of towns and cities with civilian populations. Any targeting of these places with the warheads currently deployed on Trident would lead to large-scale loss of civilian life in violation of humanitarian law.

4(35)

Moreover, present United Kingdom policy statements show that the United Kingdom does not limit its use of nuclear threats to “extreme circumstances of self-defence”. The government clearly recognises that the United Kingdom is not in danger of a threat to its “very survival”.

4(36)

The Strategic Defence Review conducted by the government states, “The end of the Cold War has transformed our security environment. The world does not live in the Shadow of World War. There is no longer a direct threat to Western Europe or the United Kingdom as we used to know it, and we face no significant military threat to any of our Overseas Territories”. ³⁴ 4(37)

Given that the survival of the United Kingdom is not presently in question, the current deployment of Trident nuclear submarines is an unlawful threat even if the government vouches that there is only one nuclear warhead of below one kiloton deployed, let alone the 144 warheads of up to 120 kilotons each that could be deployed.

4(38)

Moreover, in a recent letter of 28/9/00 that I received on behalf of Trident Ploughshares from Stephen Willmer, the Ministry of Defence stated that the UK “will not use nuclear weapons (against non-nuclear-weapon States party to the NPT) … except in the case of (an) … attack on … its armed forces, its Allies, or on a State towards which it has a security commitment”. ³⁵ This is hardly consistent with the ICJ, at para.105 2E, which states that there is only one situation when the use of nuclear weapons might be conceivable, and that is “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”. Defence Of Vital Interests 4(39)

It is clear that the United Kingdom’s nuclear weapon deployment and policy are not purely concerned with self-defence or even with retaliation against a nuclear attack from another NWS, but are also “to defend our vital interests to the utmost” as expressed in the Rifkind Doctrine. ³⁶ 4(40)

The Strategic Defence Review ³⁷ specifically sees military power as “a coercive instrument to support political objectives” ³⁸ which the rest of the report explicitly identifies as economic and oil-related. ³⁹ The government says in the Review that Trident must perform a “sub-strategic role” ⁴⁰ stating that the “credibility of deterrence also depends on retaining an option for a limited strike that would not automatically lead to a full-scale nuclear exchange”. There has been a great deal of confusion and a certain amount of scepticism about what Trident’s sub-strategic role might look like in practice. The Secretary of State for Defence for the previous Conservative Government, Malcolm Rifkind, referred to a “warning shot” or “shot across the bows”. More recently, British officials have described a sub-strategic strike as “the limited and highly selective use of nuclear weapons in a manner that fell demonstrably short of a strategic strike, but with a sufficient level of violence to convince an aggressor who had already miscalculated our resolve and attacked us that he should halt his aggression and withdraw or face the prospect of a devastating strategic strike”. ⁴¹

4(41)

For a sub-strategic role there has been speculation that some of the 100 kt MIRVed warheads would be replaced with single 1 kt or 5 or even 10 kt warheads ⁴² , or that commanders could choose to detonate only the unboosted primary, resulting in an explosion with a yield of just a few kilotonnes. There are three core problems with the concept of a warning shot to deter further aggression: i) it cannot be used against non-nuclear parties to the NPT without violating Britain’s security assurances, most recently enshrined in the UN Security Council Resolution 984 (1995) ⁴³ ; ii) it is not clear where such a warning shot could be fired so that civilians are not endangered; and iii) it is not apparent how, in the uncertain context of a hotting-up conflict, Britain would ensure that the adversary interpreted such a nuclear shot from Trident as a warning rather than a nuclear attack. Since pre-emption requires fast decision-making, it would be likely that a sub-strategic nuclear use would cause nuclear retaliation and possibly all-out nuclear war. British planners tend to duck the questions rather than address the dilemma, leaving the impression that they hope the bridge will never have to be faced, never mind crossed.

4(42)

As Lord Murray (a former Lord Advocate of Scotland) pointed out, even a one kiloton bomb “would flatten all buildings within 0.5 km with up to 50 per cent fatalities up to 1 km. A prevailing wind could carry fallout as far as 25 km downwind”. ⁴⁴ As Professor Paul Rogers agreed, in his testimony at Greenock, “the lowest British nuclear bomb … (is) … a weapon of mass destruction”. ⁴⁵ 4(43)

The deployment of nuclear weapons is perceived as an imminent ever-present threat by most States in the world, which in times of crisis is specifically backed up by verbal threats. This view is corroborated by Judge Schwebel when he reports on testimony from Ambassador Ekeus in the Senate Hearings on the Global Proliferation of Weapons of Mass Destruction which shows that Iraq perceived there to be an active threat to use nuclear weapons against it in 1990. In Schwebel’s section headed Desert Storm, he starts off, “The most recent and effective threat of the use of nuclear weapons took place on the eve of Desert Storm” and he then continues for several pages describing how the threat was communicated. ⁴⁶ 4(44)

In the February 1998 Iraq Crisis there was also talk of the possible use of nuclear weapons against Iraq. Any such use would have been unlawful because neither the United Kingdom nor the United States were under threat of obliteration by Iraq. It is worth remembering that the only possible window of legality left undecided by the ICJ was “an extreme circumstance of self-defence, in which its very survival would be at stake” (para.97).

 

Interjection by the Court at page 21, end of paragraph 4(44).

LORD PROSSER: Can I ask was it evident whether the threat identified emanated from the US, or the UK, or both?

MISS ZELTER: As far as I can remember, he was talking about the US, but if you remember we are with NATO.

LORD PROSSER: But the threat was probably the US, was it.

MISS ZELTER: Yes, I will come on to our threat.

Miss Zelter continued reading her written submission on page 21 at paragraph 4(45).

 

4(45)

And yet in the Commons Debate of February 17, 1998, Foreign Secretary Robin Cook said of Saddam Hussein “As in 1991, he should be in no doubt that if he were to do so (use chemical weapons against joint British-US air strikes) “there would be a proportionate response”. ⁴⁷ 4(46)

Interviewed on BBC Radio 4 on February 18, 1998, Defence Secretary George Robertson was given an opportunity to deny the nuclear option and he did not do so. All these were signals suggesting that nuclear weapons could be considered. They were also intended to be understood as such.

4(47)

If you refer to Moxley’s book in Chapter 20 you may well find it useful to see the other active crisis threats that have been made over the years by the nuclear power with whom we are so closely linked, namely the US ⁴⁸ As he says at page 515. “In addition to the ongoing threat that is inherent in the policy of deterrence, the US explicitly threatened to use nuclear weapons on at least 5 occassions during the Cold War, including in Korea in 1950-3, Suez in 1956, Lebanon in 1958, Cuba in 1962, the Middle East in 1973 and after the Cold War, in Iraq during the Gulf War”. He goes on to say at page 517 that Desmond Ball, Head of the Strategic and Defense Studies Centre in Australia reported there had been some twenty occasions during which “responsible officials of the United States government formally considered the use of nuclear weapons”. 4(48)

The whole purpose of nuclear deterrence is to create uncertainty about intentions. This means that the British Government has to persuade its ’enemies’ that it might be willing to break international law without actually saying it this clearly. For instance, in the 1991 NATO Strategic Concept Document, Article 38 asserted that nuclear weapons are essential and permanent because they “make a unique contribution in rendering the risks of any aggression incalculable and unacceptable“. ⁴⁹ 4(49)

If the effect of a nuclear weapon is incalculable and unacceptable then it also follows that it is unlawful. Nuclear weapons are useful only in so far as they can be used to make threats that are themselves in breach of international law. Nuclear deterrence may be official British policy but that does not make it lawful.

4(50)

To stress the words used in the ICJ, at para.105 2E, given that nuclear weapons are generally illegal there is only one situation when the use of nuclear weapons might be conceivable, and that is “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.

4(51)

That does not include protecting cheap oil supplies overseas or ensuring the survival of its troops in a foreign land.

 

Interjection by the Court at page 22 to the end of paragraph 4(51).

LORD PROSSER: I hadn’t realised the time, this is probably a convenient point to adjourn.

Adjourned until tomorrow morning.

 

NOTES

1. 3 Interlocutor Sheets of April 4th, September 12th and September 29th Procedural Hearings – “refused the motion … to record all proceedings at the hearing”. [Ref.1]. 2. Letters from Angie Zelter to Court of 18/4/00 (2a) and Motion Before the Court on 12/9/00 (2b). [Ref.2]. 3. International Military Tribunal, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. Part 22. 28th August 1946. Taken from the Official Transcript. Published by HMSO, London, 1950. P.243. [Ref.3]. 4. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, 1998, Preambular para 4 and Article 5(1). [Ref.4.] 5. Principles of the Nuremberg Tribunal, 1950. [Ref.14]. 6. Greenock Defence Production – H14 – Pledge to Prevent Nuclear Crime. [Ref.5]. 7. Greenock Defence Production – H17 – Joint Statement of Zelter, Roder and Moxley, Page 1. [Ref.6]. 8. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. Wed 20th October 1999 p.151 C. [Ref. 7]. 9. Report of Sheriff Gimblett to Lord Justice General et al, Lodged at Justiciary Office 21 August 2000, p.2 and p.38. [Ref. 8]. 10. UN Resolution A/RES/54/54Q ’Follow-Up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’, paras 1 and 2. [Ref.9]. 11. Letters from Angie Zelter to Lord Advocate of 18/4/00 (10a) and 22/7/00 (10b) (and see Ref.2a for letter to the Court of 18/4/00). [Ref.10]. 12. Report of Sheriff Gimblett to Lord Justice general et al, Lodged at Justiciary Office 21 August 2000, p.137. [Ref. 8]. 13. Lord Advocate’s Reference Petition of the Rt. Honourable the Lord Hardie, Justiciary Office Lodged on 21 January 2000. [Ref.11]. 14. Report of Sheriff Gimblett to Lord Justice general et al, Lodged at Justiciary Office 21 August 2000, p.32 and p.33. [Ref.8]. 15. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, para.75, July 8th 1996. [Ref. 12]. 16. Times Law Report, 19/5/99, International Law Report, Immunity for United Nations Expert. [Ref.13]. 17. Principles of the Nuremberg Tribunal, 1950. [Ref.14]. 18. Charles.J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000. [Ref.16]. 19. President Judge Bedjaoui’s Declaration, paragraphs 9, 11, & 20. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref. 15]. 20. Charles J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000, p.158. [Ref. 16]. 21. See Professor Paul Roger’s evidence at page 6-9 where he explains the present structure of British nuclear forces). Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999. [Ref.7] 22. See Professor Paul Rogers testimony at pages 10 and 14-15. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999. [Ref.7] and [Ref.32. Greenock Defence Production – No.5 – “Trident, Britain’s Weapon of Mass Destruction”, John Ainslie, p.1. March 1999.] and [Ref.80. Written Parliamentary Answer 28/11/91 and Strategic Nuclear Weapons Policy, House of Commons Defence Committee Minutes 17/3/82 on replacement of Chevaline with Trident]. 23. 1991 NATO Strategic Concept Document, Article 38. [Ref.17]. 24. Nicholas Lyell’s November 15th 1995 Oral Statement, CR 95/34, p.45-47. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref. 18]. 25. President Judge Bedjaoui’s Declaration, para. 22. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref.15]. 26. Christopher Greenwood, International Committee of the Red Cross No.316, p.65-75, January 1997. [Ref.19]. 27. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, para. 78. [Ref. 12]. 28. R v. Ministry of Defence, ex p Walker [2000] 1 WLR 806, 812B. [Ref.20]. 29. Additional Protocol 1 of 1977 to the Geneva Conventions of 1949, Article 48. [Ref.21]. [Note. When ratifying these protocols in 1998 the UK stated that the rules ’do not have any effect on, and do not regulate or prohibit the use of nuclear weapons’. However, this Reservation is clearly incompatible with the object and purpose of the protocols, which is to protect civilians in armed conflicts. All Reservations are covered under Article 2(i)(d) of the Vienna Convention on the Law of Treaties and Article 19(c) states that Reservations are invalid if they are incompatible with the object and purpose of the Treaty. Moreover, the statements put out by the Foreign Office on this not being a Reservation but a ’Statement of Understanding’ which ’reflects a widespread position’ is misleading in that it is only the Nuclear States and their allies that have this ’understanding’. Treaties cannot be abused in this way. Interestingly no Reservation or Understanding seems to be included in the 1995 Act that directly incorporates these Protocols into UK law. If you look at para.85 and 86 of the ICJ Advisory Opinion you can see it states that “there can be no doubt as to the applicability of humanitarian law to nuclear weapons”]. 30. Commentary of the International Committee of the Red Cross, 1987, para.1863. [Ref. 22]. 31. Preparatory Commission for the International Criminal Court, PCNICC/1999/WGEC/INF2/Add.1(30 July 1999) p14. [Ref.23]. 32. Prosecutor v. Milan Martic (Rule 61 Decison), Case No. IT-95-11-1 (8 March 1996), para.15. [Ref. 24]. 33. Letter of 3rd July 2000 from Alan Hughes, Directorate of Nuclear Policy, MoD, to Angie Zelter, para.4. [Ref.79]. 34. UK Strategic Defence Review, Ch.2, para.23, July 1998. [Ref.25]. 35. Letter of 28/9/00 from Stephen Willmer, Proliferation and Arms Control Secretariat of the Ministry of Defence, to Angie Zelter, p.1, para.3 and p.2, para.2. [Ref.85]. 36. “UK Defence Strategy: A Continuing Role for Nuclear Weapons?”, Malcolm Rifkind, Speech, London, November 1993. Para.31. [Ref. 26]. 37. UK Strategic Defence Review, July 1998. [Ref.25]. 38. UK Strategic Defence Review, Ch.5.87, July 1998. [Ref.25]. 39. UK Strategic Defence Review, Ch.2.19 & 2.40, July 1998. [Ref.25]. 40. UK Strategic Defence Review, Ch.4.63, July 1998. [Ref.25]. 41. The Bulletin of the Atomic Scientists, September/October 2000, p 71. [Ref.81]. 42. See Professor Paul Rogers’ testimony at pages 12 and 30-31, Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999. [Ref.7.] 43. UN Security Council Resolution S/RES/984/(1995), 11th April 1995, 2nd Preambular para, and 1st para. [Ref.84]. 44. Nuclear Weapons and the Law, Lord Murray, Medicine, Conflict and Survival, Vol.15, 126-137, 1999, p.134. [Ref.27]. 45. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999, p.12. [Ref.7]. 46. Dissenting Opinion of Vice-President Judge Schwebel, p.9-12. Appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996. [Ref.28]. 47. Hansard, House of Commons Debate, February 17th 1998, 906. [Ref. 29]. [Note. The reason for bringing in the United States so often is because of the interconnected nature of the British and US Trident systems – both hardware and software – systems and policies – see Professor Boyle’s testimony at pages 8-10 and 85 -90 [Ref.7. Transcript i.c.H M Advocate v. Zelter, Roder and Moxley. October 1999.] 48. Charles.J.Moxley, Nuclear Weapons and International Law in the Post Cold War World, Austin and Winfield, 2000, Ch.20. [Ref.16]. 49. 1991 NATO Strategic Concept Document, Article 38. [Ref.17].