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Disarmament Diplomacy

Issue No. 30, September 1998

Disarming Trident: Legality, Morality & Protest in the UK
By Angie Zelter

Introduction

In early July, the British Labour Government published a Strategic Defence Review (SDR), the most comprehensive review of the UK's defence forces and requirements since the end of the Cold War. Two key areas of policy, however, were named in advance as exempt from questioning: Britain's status as a nuclear-weapon State, and Britain's membership of NATO. Various implications of these two portrayed realities were considered within the Review, but the benefits of both possessing nuclear weapons and belonging to a nuclear-armed alliance were apparently too self-evident to merit examination. In particular, the moral and legal status and legitimacy of nuclear weapons was placed beyond the 'radar-screen' of the military planners and policy-makers. This paper argues two things: that no State has the right, moral or legal, to become or remain a nuclear-weapon State; and that if Governments refuse to adopt a course of nuclear disarmament, it is the moral and legal duty of citizens to protest against, and disrupt where possible, nuclear-weapons business-as-usual - even if that protest and disruption results in persecution and prosecution. The paper also argues that such persecution and prosecution is itself not only morally but legally wrong.

Putting Trident on Trial

A series of remarkable trials are currently taking place in Helensburgh, a small rural town in Scotland, close to the home base of Britain's Trident nuclear submarines. 115 people from 10 different countries were arrested during the Trident Ploughshares 2000 disarmament actions in the middle of August. Ten were remanded in custody for a month because they refused to promise not to continue their attempts to disarm Trident whilst awaiting trial. As far as the protesters were concerned, their objective was to prevent serious breaches of international humanitarian law. The Scottish Courts saw only damage being done to property; the Courts either were ignorant of, or refused to accept the applicability of, international humanitarian law to actions directed against weapons of mass destruction. Despite the customary portrayal of such anti-nuclear protesters as 'fanatics' who have no respect for, or interest in, the rule of law, the trials actually illustrate the struggle between two conflicting legal and moral perspectives.

International humanitarian law is based upon principles and morality common to all human beings. Everyone knows that killing babies and children is wrong; that soldiers killing any non-combatant is wrong; that the mass destruction of entire populations and the inflicting of long-term environmental damage is wrong. International humanitarian law has evolved over the centuries to protect neutral countries, innocent bystanders, and the environment from the worst excesses of war. All these laws state that the deliberate killing, the targeting, of innocent people is wrong. These are the basic legal premises used to condemn those Nazis responsible for the Holocaust, and being applied now at the War Crimes Tribunal in The Hague prosecuting leaders and officials implicated in atrocities in Rwanda and the former Yugoslavia. While the British Government is quick to condemn others who violate these basic norms and standards of civilised behaviour, it refuses to accept its own culpability under them and to apply these same norms and standards to its deployment of weapons capable of annihilating millions of people and destroying entire ecosystems. The Trident disarmers are seeking to point out these double-standards.

During the proceedings in Helensburgh, the protesters were told to stop using the Court as a political platform. They were, further, told not to use political statements such as referring to nuclear weapons as weapons of mass destruction. The protesters replied that they were talking law, not just politics; in particular, they sought to draw the Court's attention to the recent Advisory Opinion of the International Court of Justice (ICJ), made in response to a request by the UN General Assembly for its determination of the legality of the use or threat of use of nuclear weapons. Part of the ICJ ruling stated: "The fact that this question also has political aspects, as in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a 'legal' question." The central point - both political and legal - is this: if the UK chooses to have armed forces and to prepare for war then, like every other country in the world, it has to do so under the restraining influence of international law. This law is the thin dividing line between the killing that soldiers do and the killing of common murderers or terrorists.

The ICJ ruling - issued, coincidentally, exactly two years (8 July 1996) before the release of the UK SDR - found that "the threat or use of nuclear weapons would generally be contrary to the rule of international law applicable in armed conflict," and that "there exists an obligation" under the 1968 Non-Proliferation Treaty (NPT) "to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament..." As Alyn Ware, Executive Director of the Lawyers' Committee on Nuclear Policy, noted in the September 1996 issue of Disarmament Diplomacy, the ICJ decision "is much more than a slap on the wrist for the nuclear-weapon States, which, with the exception of China, tried to stop the WHO [World Health Organization] and the UN from taking the case to the Court, and then exerted pressure on the Court for it to decline to give an answer. It is...a resounding challenge to the continuing policies of nuclear deterrence, and to the resistance of the nuclear States to agree to negotiations on the elimination of nuclear weapons."

Another aspect of the Court's ruling is worth emphasising: its treatment of the crucial issue of nuclear-use scenarios. The Court was clearly unpersuaded by the arguments it had heard on this matter from the nuclear-weapon States: "[N]one 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 all-out use of high-yield nuclear weapons."

This last point is of particular relevance to the Trident system, which the British Government has said will function both as a 'strategic' and 'sub-strategic' 'deterrent' - in other words, as a system capable of firing either a high- or low-yield nuclear warhead. The Government has refused to define the "precise circumstances" of justifiable use of nuclear weapons, as demanded by the Court. In a letter to the author (23 October 1997), Hazel Finch of the Ministry of Defence stated that "the legality or otherwise of any specific use of any nuclear weapon...can only be determined in the light of all the circumstances applying at the time such use is being considered. It is impossible to anticipate in advance with any confidence the exact circumstances which might arise, and to speculate on particular hypothetical cases would serve no purpose." It is not only the Trident Ploughshares 2000 protesters who regard such a stance as an inadequate evasion of the legal point at hand - the ICJ, too, was obviously of the view that the nuclear-weapon States are obliged to state their position less obscurely.

The Court noted that the only conceivable scenario in which the use or threat of use of nuclear weapons might conceivably be justifiably contemplated would be "in an extreme circumstance of self-defence in which its very survival would be at stake," - although a Separate Statement appended to the Advisory Opinion added that the identification by the Court of this scenario "cannot in any way be interpreted as a half-open door to the recognition of the threat or use of nuclear weapons." Why does the Government refuse to enter into discussion of this 'State-survival' scenario? Perhaps because it clearly recognises, as it states in the SDR, that the British State faces no such threat: "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 threat to any of our Overseas Territories." As the survival of the UK is not presently under threat, the present threat by the UK to use nuclear weapons, represented by its deployment of Trident, is unlawful. If the Government were to counter this by arguing that a direct threat to British survival might re-emerge at some future date, it would be in effect be arguing that it could never agree to eliminate its nuclear weapons - a clear violation of its NPT undertakings.

In fact, Britain clearly wants to keep available the option to use or threaten to use nuclear weapons in scenarios that, however grave, do not bear on the survival of the State: for example, along with France, the US and Russia, Britain has refused to rule out using nuclear weapons if its forces were attacked with chemical or biological weapons. This scenario is probably a key reason explaining the characterisation of Trident as a 'sub-strategic' nuclear system.

Another important implication of the identification by the Court of a threat to State-survival as the only possibly justifiable nuclear-use scenario is that the threat or use of nuclear weapons to defend non-nuclear-weapon States - a scenario central to NATO's raison d'être - is unlawful.

Such references to international law, and in particular the ICJ ruling, in the defence case of the Trident disarmers is a deep embarrassment to the British Government, especially to the Foreign Office, which would not want to see the nuclear-weapon States added to its list of 'rogue nations'. And, at a time when the forthcoming trials of the Libyans accused of the Lockerbie bombing is putting the Scottish legal system in the limelight, and highlighting the importance of international law to the protection of the Scottish people, it is, to put it mildly, not appreciated that anti-nuclear protesters are trying to 'muddy the waters' by arguing that precisely the same set of international legal premises and protections should be applied in their case, too.

These factors, of embarrassment and discomfort, are among the reasons why the protesters' cases are being heard in the lower and not the higher courts. Their appeal (in letters sent on 9 July) to the Scottish Lord Advocate and the UK Attorney General to either charge the Government with breaches of international humanitarian law or to charge the protesters with conspiracy to break the law has remained unanswered. Their appeal to the UK Government (in a letter to the Prime Minister sent on 18 March) to meet with them and explain why it has not yet complied with the NPT and even entered, yet alone concluded, negotiations to bring about a nuclear-weapon-free world, has also not been answered.

The protesters are pursuing their present course of disarmament action because the UK demonstrably has no intention of eliminating Trident, and because this stance is irreconcilable with both the spirit of the NPT and the specifics of the ICJ ruling. Yet these weighty matters, of global import, are being heard at a District Court in Helensburgh - a legal forum with far too narrow a remit and too low a status to do justice to the cases at hand.

In November, the next batch of Trident disarmers will resume the open and accountable disarmament actions currently being prosecuted. Why persist with such actions, in the face of such pressure? On the simplest level, such direct and public disarmament actions add to the pressure on our political leaders to review their position on the threat or use of nuclear weapons. Without such continual public pressure, leaders would be more likely to act in at best a complacent, and at worst a criminal, manner in defence of national interests and their cherished status as nuclear-weapon States. If citizens do not - responsibly and nonviolently - demonstrate against and resist the inhumane, illegal or immoral acts of their Governments, where is the bar to those Governments becoming increasingly arrogant and corrupt?

Nuclear weapons are so horrific and frightening, and regarded as so important by those States which possess them, that many people turn away from confronting the issue, overcome by feelings of being disempowered, insignificant and helpless - and yet it is in 'our' name, to protect 'us', that the means to destroy the planet are being maintained and funded at such huge expense. Trident Ploughshares 2000 disarmers argue that ordinary people can and should do something to make the world a safer and freer place. We are encouraging 'global citizens' to come forward and form international networks of people prepared to take safe, accountable, practical and non-violent disarmament measures at all nuclear-weapons sites around the world. We are starting with the British nuclear system because it is one of the smallest and is in a State that is not facing any serious threat, surrounded by friendly nations and powerful allies. There are few if any risks in Britain disarming first and setting a powerful example for others to follow. But we are an international movement, too, and together with citizens of other countries we intend to go on to disarm the nuclear weapons of Russia, the United States, China, France, Israel, India and Pakistan.

Angie Zelter is a grassroots peace and environmental campaigner, based in Norfolk, UK. For more information about the Trident Ploughshares 2000 project, see the project's web-site at http://www.gn.apc.org/tp2000/

© 1998 The Acronym Institute.

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