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Disarmament Diplomacy

Issue No. 42, December 1999

New Legal Ruling On Trident Nuclear Weapons

Editor's note:As mentioned in Putting Nuclear Weapons on Trial Sheriff Margaret Gimblett instructed the jury at Greenock Sheriff Court in Scotland to acquit Angie Zelter, Ellen Moxley and Ulla Roder on 21 October. The three women had been charged with causing £80,000 of damage to a British Trident nuclear submarine related acoustic research barge in Loch Goil, Scotland, during a peaceful Trident Ploughshares protest action. The jury then acquitted the accused.

A full text of the ruling is not yet available from the Court. The following extract is from a verbatim transcript prepared in November for the counsel for the defence. There is also a related report on this site in News Review . Further information about Angie Zelter's case and Trident Ploughshares 2000 can be found at http://www.gn.apc.org/tp2000/

Greenock Sheriff Court, 2.08 pm, October 20, 1999. Sheriff Margaret Gimblett:

"As has been mentioned to me it seems quite clear that the defence in this case for all three accused is based on two matters, the second being if you like esto code, that is if you don't agree with me on the first ground of defence (inaudible) on the next one. The first being that the three accused considered that Trident was being used illegally based on an understanding of what was international law and on advice given to them. And if they were right that the use and threat of nuclear weapons is illegal and as I understand from Miss Zelter they do not say that possession of weapons, such weapons is illegal but the use and threat is illegal. Then again they had a right particularly given the enormity or the enormity of the risks of nuclear weapons to try and do something to stop that illegality. The esto offence, if I can put it that way, was based on absolute necessity and as Miss Zelter put it in her view it didn't really matter whether it was illegal or not the necessity was still there. It's the principle that's the illegality.

In considering this question because I cannot get away from it... I have really not a great deal to go on other than what the International Court of Justice had in 1996 and indeed their opinion which is advisory and not binding but I think at least in word acknowledged that it is authority and agreed by all at least on the face of it that very careful consideration should be given to its terms.

In reaching their opinion the International Court based the opinions on all the body of law which went before it and is carefully outlined in their opinion and that law to an extent has been canvassed in this Court also by the various experts. The opinion did not say the possession of nuclear weapons is illegal. Nowhere does any law say that, even our own High Court has said that possession of nuclear weapons is in itself not illegal.

Unfortunately because they have not been addressed on the law and they were simply dealing with what appeared to be an honest belief of the accused they did not go on to consider the law except so far as it related to possession, but I think in many cases, in many ways, the case of Helen John can be distinguished in this case not only do we have the defence of international law and necessity but the whole defence hinges, if I can say it this way, on the use made of nuclear weapons now and the perceived threat or threats made by the nuclear states, this is the whole question. And on that particular matter the use or threat of use I would concede that the International Court did not say that in all circumstances threat or use of nuclear weapons was universally prohibited by either customary law or conventional international law that authorised the threat or use of nuclear weapons. Then they issued what I think many people consider to be an enigmatic decision and although this has been read on a number of occasions I don't think it does any harm to be read over again. This is at paragraph 2(?) and it reads as follows "From the above mentioned requirements that the threat of all use of nuclear weapons would be generally contrary to the rules of international law applicable in arms conflict and in particular the principles and rules of humanitarian law".

Then it goes on to say "However in view of the current state of international law and of the elements of fact at its disposal the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of the State would be at stake". I

think it is these last words which are really important. We do not know what they meant by "generally" but their final conclusion which is really perhaps what is called a non (inaudible) conclusion, that is we don't know, would seem to indicate that the use or threat of such weapons could only be used in very tight circumstances of self defence in which the very survival of a state would be at stake. And I think read most if you like in that opinion by reading what it says by the President of the Court when he said… "I cannot over-emphasise that the inability of the Court to go further than the form of pronouncement at which it has arrived cannot in any way be interpreted as a half open door to recognition of the legality of the threat or use of nuclear armaments". I have also looked at the way the judges voted at the end in reaching their final enigmatic conclusion which was pointed to by Mr Mayer and where it seems there was a majority of judges voting against the use of nuclear weapons…

What he said about the final opinion was turning to the central matters on which the judges were equally divided until the President's casting vote the Court's decision was to the effect that the threat or use of nuclear weapons in unlawful under all circumstances except possibly one last resort self defence to avoid annihilation, to which a balanced view of the grounds on which the judges decided….

Now, I have the invidious task of deciding on the international law here as it relates to nuclear weapons and I do so with great diffidence being only a fairly junior Sheriff without the wisdom and experience of those above me and in the knowledge that the repercussions could be fairly far reaching. But when I became a sheriff I took an oath which demanded acting without fear or favour in interpreting the law and as the point of international law has been raised here I have to answer it. I take comfort from the fact that I do so in the full knowledge that there are other higher courts who can rectify any mistake I may probably be making. So in the absence of anything other than the ICJ opinion which Court considered all the relative law referred to, referred to by counsel and Miss Zelter, having regard to what was said in the article by Ronald King Murray, already referred to, and in particular that part relating to treaties and conventions which concludes with the words "These then are the principles on which the lawfulness of the proposed use of a particular weapon is to be assessed. It is to be noted that in so far as they consist of international customary law they are part of the domestic law of this country" and having listened to the evidence of Professor Boyle and taken into account all the evidence relating to facts and circumstances to this case from him and others, particularly those called as experts and in the absence - and this is very important - in the absence of any expert contradictory evidence from the Crown, I have to conclude that the three accused ladies in front of me in company with many others were justified in thinking that their Britain in their use of Trident not simple possession, their use and deployment of Trident allied with that use and deployment at times of great international unrest, coupled with a first strike reservation policy and in the absence of indication from any government official then or now that such use fell into any strict category suggested in the International Court of Justice in their opinion then the threat or used of Trident could be construed as a threat, has indeed been construed by others as a threat by other states and as such is an infringement of international customary law, never mind morally to do the little they could to stop the going about the deployment and use of nuclear weapons in a situation which could be construed as a threat. They were not objecting to the objection per se. It follows I think that if I consider that Miss Zelter, Miss Roder and Miss Moxley were justified in the first leg of their defence, namely the international law evidence, and had given that as their principal reason for their actions that the Crown has a duty to rebut the defence. They have not done so and accordingly I uphold the three Defence submissions to the extent that they relate to the charges of malicious and wilful damage.

I agree with the comments put forward so succinctly by Mr McLaughlin after his colleague Mr Mayer had spoken concerning the word "malicious". I am of course aware of the statement referred to in Gordon's Criminal Law and I won't repeat the Latin but simply the transaction "No act is punishable unless it is committed with a criminal mind" and therefore no act is punishable under the law of Scotland if it is performed with no criminal intent. I have heard nothing which would make it seem to me that the accused acted with such criminal intent.

Accordingly it now falls to me I believe to formally instruct the Jury that they should acquit all three accused of those charges that relate to wilful and malicious damage, that is Charges1 and 3. That leaves the alternate Charge 4 and in fact I think I would for completeness sake I would have to acquit the three accused in respect of the first alternative of Charge 4. So that leaves the second alternative and I would wish the Procurator Fiscal to consider his position there in the light of Mr McLaughlin's remark, if he has not already done so, to address me if necessary and let me know how he wishes to proceed in respect of the second alternative of Charge 4.

Now, before I do that and before I stop, bearing in mind the three ladies before me had many friends and supporters in Court and outside who may take this decision as an open door for further action which may be against the law. May I say that if anyone else takes such action they do so at their own peril. The law is not absolutely clear on nuclear arms. I may be totally wrong and if it goes to appeal I may not be upheld by those above me.

Furthermore, every case depends on the whole circumstances. What I have said is said in very special circumstances of this trial. The evidence led and what happened on board Maytime and the expert evidence led or not led, not least if it relates to international law and the world wide situation of tension in the world in the months immediately before June '99 and at that time. That is my decision."

Source: Trident Ploughshares 2000 website: http://www.gn.apc.org/tp2000/

© 2000 The Acronym Institute.

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