Lord Advocate’s Reference

WEDNESDAY, 11th OCTOBER, 2000

LORD PROSSER: Miss Zelter, before I ask you to continue there are just a couple of things I think it would be easier to raise at this stage. You gave us what we called a big bundle and a small bundle and we’ve got them and what relationship is there. It appears that the smaller one is as it were passages which are highlighted which you may specifically want to refer us to whereas the larger bundle, what is that?

MISS ZELTER: I found it easier the way the Crown have got their references to have it separated out and the smaller bundle is the one I prepared.

LORD PROSSER: It would cover most of the passages that you have been referring to and one will find the full documents.

MISS ZELTER: Yes my Lord.

LORD PROSSER: I have the index of references and that is extra.

MISS ZELTER: I think there was a missing reference 82 but there is a copy of reference 82 and the Crown copies are from print and that edition is slightly different on the page numbers.

LORD PROSSER: They are exactly the same but the page numbers are slightly different. I just wanted to check that when you came to questions of Government policy you obviously have before you the points implicated in deployment and in particular in deployment of Trident specifically but you also referred to certain expressions or things said by Government from which one may infer or perhaps hear both submissions and policy and it seemed to me, it may not matter whether these were referred to before the Sheriff or not, but it did seem to me that, without having checked that the material was before the Sheriff. Plainly the letter that you received in September of this year was not before the Sheriff.

MISS ZELTER: I have the full list that I had before the Greenock Court. I do have a full list of all the references that I put before the Greenock Court.

LORD PROSSER: The other material was the letter that you got the other day which plainly was not, but you also referred to the submissions made at the time of the Iraqi conflict by both the Foreign Secretary and the Defence Secretary. These were before the Sheriff.

MISS ZELTER: Yes.

LORD PROSSER: If you return to your submissions.

Miss Zelter resumed her submission at Page 22 War Crimes - Paragraph 4(52).

War Crimes 4(52)

Any individual who ordered the use of the United Kingdom’s nuclear weapons which are currently deployed on Trident submarines would have committed a war crime as determined by the International Criminal Court Statute. This Statute sets forth offences under which individuals would be prosecuted once that court is in operation. Its substantive provisions were explicitly negotiated on the basis that they would reflect the present state of law binding on all States. While the Statute is not yet in effect, as the required number of States (60) has not yet ratified the instrument (the UK are preparing to ratify it in this new Parliamentary session), the Statute nonetheless stands as a consensus-based statement of presently binding law defining war crimes. ⁵⁰ 4(53)

Article 8 (2) (b) parts (iv) and (v) of the International Criminal Court Statute state, "War crimes means ... serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts; ... (iv) Intentional launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated, (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives". ⁵¹ 4(54)

Article 25 of the Rome Statute contemplates criminal responsibility not only in the case of those who personally commit offences, but also in the case of those who order them. [Ref.4. UN Doc. No.A/CONF.183/9 Rome Statute of the International Criminal Court, Article 25(3.b)]. Article 28 has far reaching provisions on the responsibility of commanders and other superiors who may be liable in some situations for not giving appropriate orders. ⁵² 4(55)

In relation to this responsibility it is important to note that the British government have always refused to answer our question of how the crew of Trident can take personal responsibility for their actions when their targets are coded and they do not know where their nuclear warheads will explode? The Law of Armed Conflict states, "Military personnel are required to obey lawful commands. There is no defence of ’superior orders’. If a soldier carries out an illegal order, both he and the person giving that order are responsible." The Nuremberg principle is binding. If Trident crews do not know what the targets of their weapons are, how can they know if they are legal targets or not? Trident crews fire blind. This is a criminal procedure. ⁵³ 4(56)

The 100 kiloton warheads on Trident are each eight times more powerful than the bomb used against Hiroshima. The Hiroshima bomb had killed approximately 140 to 150 thousand people, including thousands of innocent children, by the end of 1945, and devastated an entire city, destroying 18 major hospitals, 14 high-schools, colleges, and a university, many historic and deeply revered Shinto shrines, 13 Christian churches, 4 major factories - a whole city. ⁵⁴ Moreover, when I was in Hiroshima this March I met survivors of that bomb who told me of the continuing suffering and took me to the Museum. One of the books I was given there states, "The damage caused by the A-bomb failed to heal normally with the passage of time. Over the years and decades, the horrors of radiation grew more conspicuous. Research into radiation effects, strictly suppressed during the occupation (by the US) proceeded rapidly when Japan was once again independent. This research gradually brought radiation aftereffects and the plight of the survivors into the open". ⁵⁵ That destruction in Hiroshima was ruled a war crime in the Shimoda Case. ⁵⁶ At pages 234-242 it says that the "act of dropping such a cruel bomb is contrary to the fundamental principles of the laws of war that unnecessary pain not be given".

Interjection by the Court at the end of Page 24 Paragraph 4(56).

LORD PROSSER: Did that turn on it’s nuclear nature with radiation or simply on the question of immediate destruction. I think the original call was for the bombing of Tokyo.

MISS ZELTER: This turns on the radiation and the effect it bears over time and over generations even when the war is over. To come back on that point I’m not conceding that the bombing of Tokyo was not also a war crime.

LORD PROSSER: It was just to clarify that particular point.

At this stage Miss Zelter continued her written statement.

4(57)

According to the ICJ, at para.105 2D, which was adopted unanimously, a threat or use of nuclear weapons must "be compatible with the requirements of the international law applicable in armed conflict". It was confirmed, at para.78, 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 ... States do not have unlimited freedom of choice of means in the weapons they use".

4(58)

The threat to target civilians with nuclear weapons, whether as an unprovoked attack or as a reprisal, is therefore unlawful. In the oral statement that the United Kingdom gave to the ICJ on November 15, 1995, Sir Nicholas Lyell admitted that ".... even a military target must not be attacked if to do so would cause collateral civilian casualties or damage to civilian property which is excessive in relation to the concrete and direct military advantage anticipated from the attack". ⁵⁷ 4(59)

However, as the ICJ points out, at para.35, "By its very nature ... nuclear weapons as they exist today, release(s) not only immense quantities of heat and energy, but also powerful and prolonged radiation ... These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystems of the planet". This general statement about nuclear weapons is equally true when applied to British nuclear weapons in particular.

4(60)

Faslane in Scotland is the primary base used by the United Kingdom’s four nuclear-armed Trident submarines. There is at least one Trident submarine on 24-hour patrol at all times. Each Trident submarine has 48 warheads of 100 to 120 kilotons each. A 100-kiloton warhead is too powerful to distinguish between civilian and military targets and its long lasting effects cannot be contained within space or time and therefore violates international law.

4(61)

"Today the scale of Britain’s nuclear capability and the way it is deployed suggest that it remains oriented principally against Russia. An attack using the warheads on one submarine against likely targets in the Moscow area would result in over 3 million deaths" and "there would also be massive nuclear fallout over urban areas. Thousands of people would die over a 4 to 12 week period from this fallout". ⁵⁸ 4(62)

Other potential targets are Russian Northern Fleet submarine bases. In the United Kingdom there are towns and villages close to every key submarine facility as is the case with Faslane, which is near the civilian population in Glasgow. There are also civilian populations close to Russian bases near Murmansk. Trident warheads exploding above these bases would cause devastation over a wide area and in each case would result in thousands of civilian casualties in urban areas. The areas affected would also be dangerous to rescue and medical staff and civilians who would want to use the area in future.

4(63)

When I asked Professor Paul Rogers to use the actual specifications of the UK Trident Force along with UK targeting policies and to model this against Britain itself in order to more easily understand the effects of the Trident system, he produced a paper stating, on page 2, that "The main targets would be the Trident base at Faslane and the nuclear armaments site at Coulport, both close to Glasgow. Supporting facilities at bases including Rosyth (near Edinburgh) and Devonport (near Plymouth) would also be attacked" as would Fairford, Fylingdales, Aldermaston, and civil airports with long runways at "Heathrow, Stanstead, Gatwick, Birmingham, Manchester, Glasgow, Prestwick, and Edinburgh". "Major military command centres would include Northwood ... High Wycombe ... Dunfermline .. Defence Intelligence Staff in Central London" ... energy resources "such as Grangemouth, Teeside, Stanlow/Ellesmere Port" etc etc. He concludes that many of the targets are necessarily close to population centres and that the casualty figures would be measured in "many millions". ⁵⁹

Interjection by the Court at Page 25 at the end of Paragraph 4(63).

LORD PROSSER: These quotations are from where, they are not from a written paper?

MISS ZELTER: This is from a written paper.

LORD PROSSER: Did he speak to it?

MISS ZELTER: No, he didn’t speak to this at Greenock. This is something I asked him to do specifically for this case.

LORD PROSSER: He produced a paper but it was produced ad hoc.

MISS ZELTER: He gave evidence at Greenock which covered this but ideally I wanted this particular paper. The reference is No.77.

LORD PROSSER: In the smaller bundle.

MISS ZELTER: Now, we have highlighted this with the barracks in the centre of the red circle which is the military target and the effect of one Trident warhead which is actually 1,100 metres above the target, which is where I think most of the Trident submarines had been used, and you will notice within the 98% killed area there are schools and trees, a church and a university, you know Edinburgh better than me, and you can see how the innocent civilians and direct people and places would actually be affected by the use of just one Trident warhead directed accurately against one military target.

LORD PROSSER: The yellow circle is what?

MISS ZELTER: Are the effects of the heat from the exposure, the red is the blast damage. These are immediate deaths and do not take account of the radiation effects over a much larger area.

At this point Miss Zelter resumed reading from the last sentence of Page 25 Paragraph 4(64).

4(64)

I have also included in the bundle of references a map of Edinburgh with one of its many military targets in the centre. This has been overlaid with the damage which would be caused if one of Trident’s warheads was exploded at 1,100 kt above the target. ⁶⁰ It makes grim reading and brings home to us all how integrated the military have become in many cities and towns around the UK.

4(65)

The upshot of it all is that any Trident sized nuclear warhead, even if targeted accurately, at any of these ’military objectives’ would cause millions of civilian deaths. I am sure that we would all agree that such use of such nuclear weapons against Britain would be a war crime even if our leaders were invading another State and that State thought they were fighting for their very existence, in self-defence. And if such use would be a war crime if done against Britain then to be consistent it would also be a war crime if perpetrated against any other country in the world. Preparations for War Crimes 4(66)

The preparation for war crimes is itself a war crime, as made most explicit in the International Criminal Court Statute Article 25 (3). "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: ...(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission". ⁶¹ 4(67)

This is a culmination of various precedents such as the last paragraph of Article 6 of the Charter of the International Military Tribunal at Nuremberg on "instigators and accomplices participating in the formulation ... of a common plan or conspiracy". ⁶² 4(68)

The Prime Minister and other officers of the state are engaged in the planning and preparation for use of nuclear weapons, in that they are actively deploying nuclear weapons, of such a size that they could never be used lawfully. These are activities that incur individual criminal responsibility in international law. Any use of current British nuclear weapons would be manifestly unlawful and thus policy makers, state employees, researchers and technicians are engaged in the planning and preparation of gross violations of humanitarian law, itself a crime under international law. Nuclear Policy 4(69)

Just as the use of British nuclear weapons would be illegal and criminal so is the threat to use them, which is what Trident deployment and the British Government’s reliance on nuclear deterrence is all about. And this is not just a belief of mine but a fact. If we look at the statement given to the International Court of Justice by Japanese lawyers in 1995 it states, at page 25, ’The world’s citizens are in actuality being threatened at this very moment’. They explained, ’Since Hiroshima and Nagasaki the nuclear powers have always hinted at the possibility that they might use nuclear weapons and have continued saying that it is legal. Nobody on earth can live their lives while putting their trust in this ’humanity’ of the nuclear powers. This is because resigning oneself to a condition of servility , in which one’s very existence as a human being is controlled by the intentions of a handful of nuclear-armed states, goes against the nature of human being, and jeopardises our supreme and inalienable right to life, which is universally affirmed in the Universal Declaration of Human Rights and the International Covenant on Human Rights. This state of nuclear servitude also jeopardises our enjoyment of other human rights and basic freedoms, and therefore means that ’human dignity’ is violated." ⁶³ 4(70)

In para.48 of the Advisory Opinion, the ICJ argues that a credible deterrent is a threat. ...

Interjection by the Court at the end of the first sentence of Page 26 Paragraph 4(70).

LORD KIRKWOOD: Is the ICJ "argues that a credible deterrent is a threat", is that simply quoting the argument put forward by some States?

MISS ZELTER: I’ll come on to that.

LORD KIRKWOOD: I have it here.

MISS ZELTER: If I can read what it says.

LORD PROSSER: Perhaps it is the ICJ’s narrative and sentence "In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible". It may be that is still narrating that the States put forward rather than the view of the Court itself.

MISS ZELTER: Yes, it is.

LORD PROSSER: It says "necessitates that the intention to use nuclear weapons be credible", and it brings in that as its criteria so it is credibility it is talking about but not genuineness.

MISS ZELTER: Yes, he is putting it within that framework.

LORD KIRKWOOD: Whether that was just the view expressed by the Court.

MISS ZELTER: If we narrate the argument... At this stage Miss Zelter continued her written statement on the second sentence of Page 26 Paragraph No. 4(70).

...I quote, "Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence ... necessitates that the intention to use nuclear weapons be credible. Whether this is a ’threat’ contrary to Article 2, paragraph 4, [of the UN Charter] depends upon whether the particular use of force ... would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it would be unlawful under the law of the Charter."

4(71)

Even US Judge Schwebel, in his section on State Practice on page 1, explains that states have threatened to use their nuclear weapons "by the hard facts and inexorable implications of the possession and deployment of nuclear weapons; by a posture of readiness to launch nuclear weapons 365 days a year, 24 hours of every day; by the military plans, strategic and tactical, developed and sometimes publicly revealed by them; and, in a very few international crises, by threatening the use of nuclear weapons. In the very doctrine and practice of deterrence, the threat of the possible use of nuclear weapons inheres". And on page 3 he re-iterates the point, "If a threat of possible use did not inhere in deterrence, deterrence would not deter". ⁶⁴ 4(72)

U.K. government policy is that Britain has a "credible nuclear deterrent". This means far more than possession. A credible deterrent requires that the other side is convinced that the weapons would be used. So to have a credible deterrent means that preparations have been made to use the weapons and there is an intention to use them in some circumstances. One strand of strategic thinking is that there can be "existential deterrence". This approach says that the possession of nuclear arms is in itself sufficient to constitute a deterrent. Existential deterrence is not currently practised by any of the main nuclear weapons states.

4(73)

The former Permanent Under Secretary at the MoD, Michael Quinlan, has dismissed this approach. He said of existential deterrence, "We cannot however infer from this that our own armoury will be durably effective in contributing to deterrence, especially in times of pressure when it is most needed, if there are no realistic concepts for its use or if we have a settled resolve never to use it. ... Deterrence and use in logic can be distinguished, but not wholly disconnected. We cannot say that nuclear weapons are for deterrence and never for use, however remote we judge the latter possibility to be. Weapons deter by the possibility of their use, and by no other route; the distinction sometimes attempted between deterrent capabilities and war-fighting capabilities has in a strict sense no meaningful basis ... The concept of deterrence accordingly cannot exist solely in the present - it inevitably contains a reference forward to future action, however contingent. The reference need not entail automaticity, or even a firm intention linked to defined hypotheses; it need entail no more than a refusal to rule out all possibility of use; but it cannot entail less". ⁶⁵

Interjection by the Court at Page 27 at the end of Paragraph 4(73).

LORD PROSSER: That was written by him as an official and he was so at the time.

MISS ZELTER: It was published in 1997, the Whitehall paper.

LORD PROSSER: It was written by him in his official capacity?

MISS ZELTER: We can check and come back on that.

LORD PROSSER: The paper says it is "RUSI".

MISS ZELTER: I don’t know but again I’ll come back on it.

LORD PROSSER: It is the Royal United Services Institute Whitehall Paper series.

At this stage Miss Zelter continued her written statement.

4(74)

In fact the UK goes much further than this. According to one of the more detailed assessments of the range of options for sub-strategic Trident warheads, David Miller, for the International Defence Review in 1994, outlined 4 different uses, in the third one of which he says, "they could be used in a demonstrative role: i.e. aimed at a non-critical uninhabited area, with the message that if the country concerned continued on its present course of action, nuclear weapons would be aimed at a high-priority target." ⁶⁶ This is backed up by a recent letter of 28/9/2000 received from the Ministry of Defence which talks of sending a "signal" and which also leaves open the possibility of firing "all the nuclear weapons at its disposal" . ⁶⁷ However, even a limited warning shot would not be lawful because its ’purpose’ would be to warn that much worse will come and that worse would be a high-yield bomb that would be indisputably illegal and therefore the warning shot itself would be an illegal threat. I come back once more to the simple underlying purpose of the British nuclear deterrent - to threaten awful destruction. It is that awful destruction, that crime, that we three women were trying to prevent by our action.

Interjection by the Court at Page 28 the end of Paragraph 4(74).

LORD PROSSER: The warning shot, would this be a particularly specific form of threat?

MISS ZELTER: Yes, it doesn’t need to say if it is a threat.

LORD PROSSER: It is just getting more specific.

MISS ZELTER: It is in itself an illegal threat.

At this stage Miss Zelter continued her written statement.

4(75)

Para.47 of the Advisory Opinion makes it clear that it is illegal to threaten to do an act if the act itself is illegal, "If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4" of the UN Charter. The United Kingdom possesses nuclear weapons, of a size that cannot be used discriminately, which are constantly deployed on submarines, ready to be used, and has made statements of conditional willingness to use them in British policy documents. This "stated readiness to use" its nuclear weapons is exactly the kind of threat that is prohibited under Article 2(4) of the UN Charter.

4(76)

British nuclear warheads of 100 kilotons could never be used in conformity with the principles of necessity and proportionality and the requirements of international law. Therefore continuous active deployment combined with a stated readiness to use them constitutes an illegal threat to use nuclear weapons and as such is illegal. Refusal to Negotiate under Article VI of the NPT 4(77)

At para.99 of the Advisory Opinion, the ICJ appreciated "the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament". It ruled unanimously, at para.105(2F), "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 control". At para.99 it stated, "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." 4(78)

The United Kingdom has made clear it has no immediate intention of eliminating its Trident system. The Strategic Defence Review specifies plans for upgrading Trident in the medium term and keeping options open for a replacement in the long term. Recent press revelations and a report by Alan Simpson MP present evidence of the new refurbishment programme at the Atomic Weapons Establishment at Aldermaston costing one hundred and fifty million pounds sterling and of a linkage with the US "son of Trident" programme to upgrade nuclear warheads. There is also proof of increased scientific collaboration between the United Kingdom, France and the US. Simpson’s report concludes, "there is strong evidence that Britain is currently involved in the development of prototype designs to replace the current Trident nuclear warhead". ⁶⁸ 4(79)

Nor has the United Kingdom been working in good faith within the UN for nuclear disarmament resolutions. For instance, in 1998 the United Kingdom voted against the resolution, "Towards a Nuclear Weapon-Free World: The Need for a New Agenda". Ian Soutar, the British ambassador to the UN, said that the resolution contained measures that were "inconsistent with the maintenance of a credible minimum deterrent". ⁶⁹ The United Kingdom also voted, for the third consecutive year, against the 1999 UN Resolution on "Follow-up to the ICJ Advisory opinion". ⁷⁰ 4(80)

The United Kingdom’s refusal to stop deploying Trident and to start its practical disarmament of Trident flouts Article VI of the NPT as interpreted by the ICJ in paras.99 and 105(2F) of the Advisory Opinion. The continuing development of new nuclear weapons is also a breach of Article VI and constitutes a violation of international law. At the recent Review Conference of the NPT in New York in May this year, although the United Kingdom joined in the consensus "unequivocal undertaking by the nuclear weapon states to accomplish the total elimination of their nuclear arsenals", ⁷¹ nevertheless they have not done anything practical to put this into effect. The original NPT promises by the nuclear weapons states were not fulfilled. We must look at the facts on the ground. The United Kingdom continues to fund research into new nuclear weapon systems, continues to deploy armed nuclear missiles and continues to state that it relies upon nuclear deterrence. In this context it is not surprising that ordinary citizens have felt the necessity to try to begin the disarmament themselves. Conclusion 4(81)

The Government has frequently been asked but has never explained to the ICJ or to the British public how it could possibly use its nuclear weapons legally. It has not even been able to outline one hypothetical example. The government has, in fact, been very careful to say that it could never foresee the precise circumstances and could therefore not determine the legality until the time came to use them. It is hard to see how, with no criteria apparently available to use as guidance, any responsible Commander could make a decision to unleash Trident missiles within the probable fifteen minutes time frame that would be available in a particular instance. It is clear that the British Government has to date been unable and unwilling to open itself to independent legal scrutiny.

4(82)

The form of words the government usually uses is: "the legality or otherwise of any specific use of any nuclear weapons ... 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". ⁷² 4(83)

It is absurd to think that, if no such legal scrutiny and exercises had taken place before, any thorough legal scrutiny of an actual use of nuclear weapons could take place in the heat of a war of self-defence in which the very survival of the United Kingdom might be at stake. According to the ICJ this is the only possible circumstance in which the use of nuclear weapons might conceivably be used. The fact that the British Government cannot identify a single hypothetical case that could be presented into the public domain for independent legal scrutiny suggests there are none.

Interjection by the Court at Page 30 at the end of Paragraph 4(83).

LORD PROSSER: That is the end of a major chapter really.

MISS ZELTER: I would finally like just to add a little bit to that which belongs to this point. With the permission of the Court I would like to make some extra points on the basis that I am seeking to counter the impression sought to be conveyed by the Crown to the effect that nothing can be illegal as long as it assists the UK.

LORD PROSSER: Could you just slow down please.

MISS ZELTER: I would seek to counter the impression sought to be conveyed by the Crown to the effect that nothing can be illegal as long as it assists the UK in the situation it defines as one of extreme necessity. I am referring to Reference 87 "In the Hostages Case the Tribunal clearly stated that the ’rules of International Law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation". And "This passage was prominently cited by the Commission in the concluding Digest of Law and Cases" and then the reference in 88 "as well as being followed in the German High Command trial where the Tribunal explicitly repudiated as ’a denial of all laws’ the theory that ’the laws of war lose their binding force in case of extreme necessity, which was said to arise when the violation of the laws of war offers other means of escape from extreme danger, or the realisation of the purpose of war - namely the overpowering of the enemy".

4(84)

Finally, with the permission of the Court, I would like to share some extra information from the classic corpus of post WW2 war crimes trials, which directly counter the impression sought to be conveyed by Counsel to the Crown to the effect that nothing can be illegal so long as it assists the UK in a situation it defines as one of extreme necessity.

4(85)

In the Hostages Case the Tribunal clearly stated that "the rules of International Law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation." ⁷³ This passage was prominently cited by the Commission in the concluding Digest of Law and Cases ⁷⁴ as well as being followed in the German High Command Trial where the Tribunal explicitly repudiated as "a denial of all laws" the theory that "the laws of war lose their binding force in case of extreme necessity, which was said to arise when the violation of the laws of war offers other means of escape from extreme danger, or the realization of the purpose of war - namely, the overpowering of the enemy." ⁷⁵

LORD PROSSER: It is quite important, the reference to the German High Command trial, is that to Nuremberg itself?

MISS ZELTER: Yes, I think it is all that particular trial. I think that particular edition does refer to that.

LORD PROSSER: If it had been at Nuremberg as well as the original, the big one.

MISS ZELTER: At this stage Miss Zelter continued her written statement "In the same case the Tribunal placed use of poisoned arms", and I don’t want to get into a discussion of whether nuclear weapons are poisoned or not, but the essence of it is the same anyway, but nonetheless "in a category of conventional and customary rules that ’do not lose their binding force even if the breach would effect an escape from extreme danger or the realisation of the purpose of law". "And it also went on to quote the key sentence in the Judgment of the Tribunal in the Krupp Trial from which I would like to quote a full paragraph (full paragraph quoted)".

4(86)

In the same case the Tribunal placed use of poisoned arms in a category of conventional and customary rules that "do not lose their binding force even if the breach would effect an escape from extreme danger or the realization of the purpose of law." ⁷⁶ And it also went on (at page 127) to quote the key sentence in the Judgement of the Tribunal in the Krupp Trial from which I would like to quote a full paragraph: " However, quite apart from this consideration, the contention that the rules and customs of warfare can be violated if either party is hard-pressed in any way must be rejected on other grounds. War is by definition a risky and hazardous business. That is one of the reasons that the outcome of war, once started, is unforeseeable and that, therefore, war is a basically unrational means of ’settling’ conflicts - why right-thinking people all over the world repudiate and abhor aggressive war. It is an essence of war that one or the other side must lose and the experienced generals and statesmen knew this when they drafted the rules and customs of land warfare. In short these rules and customs of warfare are designed specifically for all phases of war. They comprise the law for such an emergency. To claim that they can be wantonly - and at the sole discretion of any one belligerent - disregarded when he considers his own situation to be critical, means nothing more or less that to abrogate the laws and customs of war entirely.’" ⁷⁷

This concludes my argument on the illegality of Trident.

LORD PROSSER: You have appended these references, are these additional ones?

MISS ZELTER: Yes.

LORD PROSSER: They are not in the other bundle.

MISS ZELTER: If you would like them just to set the context of what I consider to be the illegality of the situation.

LORD PROSSER: Before we leave that chapter can I just see if you can clarify Article 6 of the comment on the proliferation treaty which seems to be hopeful that the nuclear powers will disarm individually, and your concern is the perhaps intention that they should all do it together because they won’t do it separately and that seems to be the context and therefore the need for negotiation apparently over some period of time. So that at least, that sentence doesn’t appear to be putting forward the proposition that these nuclear states are already under an obligation to disarm unilaterally.

MISS ZELTER: The whole point of the non-proliferation treaty when it was set up was based on two assumptions, one was that the nuclear weapons states would disarm, and the other one that the non-nuclear states would not get nuclear weapons and that they made a promise that for the next 25 years they did not arm so that was the universal point and that was an obligation of the Act.

LORD PROSSER: Not just the Act, but it is to negotiate in good faith, it is the negotiation in good faith which seems to be the most important point, to all at once commit to getting rid of it.

MISS ZELTER: I would submit it doesn’t rule out doing it unilaterally, it is trying to put pressure on all the nuclear states.

LORD PROSSER: Running through it like that it seems to be implicit in that that they are just, they are committing themselves to negotiation which will succeed sooner or later, and once it has succeeded presumably if nobody has nuclear weapons even a country whose survival is at stake may just have to submit to being overwhelmed, or at least tolerate being overwhelmed.

MISS ZELTER: Yes, in a case where the negotiations have or haven’t succeeded.

LORD PROSSER: The point I wanted to clarify was and this is a point you might rely on, there seems to be an acceptance by even the nuclear states of what you can call survival self-defence which doesn’t justify everything, never mind in the meantime, it doesn’t justify this in the end, and then if the disarmed countries have to tolerate being overwhelmed presumably the international community might intervene in the same way to restore things or they might lose their state-hood. That is the point I wanted to raise before.

At this stage Miss Zelter continued her written statement at Page 31.

LORD PROSSER: This as it were is Chapter 5.

MISS ZELTER: Yes.

5(1)

The implication of all this is that British Government officials involved in the Trident programme, from the Prime Minister down, including all members of the Executive and the Lord Advocate, and the military personnel involved, are all international criminals subject to trial before an international panel similar to the Nuremberg or Tokyo Tribunal or the current Tribunals dealing with the atrocities in Rwanda and the Former Yugoslavia.

5(2)

So far no court of law or Tribunal has upheld my view (which is shared by millions of other people around the world) because no court has been allowed to look directly and thus to rule on this particular issue of the legal status of the UK’s Trident system. This is not for want of trying.

5(3)

In fact, many citizens, over the last 20 years, have put motions and petitions before the Lord Advocate and Attorney General asking that the UK nuclear forces be ruled unlawful under the Geneva Conventions Act or that the issues at least be examined impartially in a public inquiry. Many citizens have asked for legal permission at numerous magistrates courts around England and Wales to institute private prosecutions against Ministers and Military Leaders, indicting them for conspiracy and incitement to violate the most fundamental principles of International and United Kingdom Law - but to no avail - so far. ⁷⁸ 5(4)

These attempts still continue. In answer to a written question put by Tony Benn M.P. in December last year, the Solicitor General admitted that, "A request for a private prosecution under the Geneva Conventions Act 1957 was received last year. However, the Law Officers take the view that the application of the Government’s nuclear deterrence policy does not involve an infringement of either domestic or international law, and accordingly permission was not given." ⁷⁹ Many citizens have also approached the police authorities to ask them to investigate the crime and take legal proceedings in the public interest. But all to no effect. The rule of law is still being thwarted.

5(5)

I gave evidence from the witness box as to these attempts, some of which I had personally been involved in. The Sheriff reported the evidence I gave to this effect at page 23. ⁸⁰ I said then and I say again that this is a serious failure and indictment of the Judicial System in both Scotland and England.

5(6)

In view of the general failure of the Executive to allow remedies to be taken by ordinary citizens against crimes being committed by the State, it is not surprising that ordinary people, like us three women, have felt the absolute necessity to try to work with others to prevent this crime ourselves.

Interjection by the Court at Page 31 Paragraph 5(6) "In view of the general failure of the Executive to allow remedies to be taken by ordinary citizens against crimes being committed by the State, it is not surprising that ordinary people ..."

LORD PROSSER: Surprising not by the judicial system but by the Prosecution system.

MISS ZELTER: Yes.

At this stage Miss Zelter continued her written statement from Page 31 Paragraph 5(6).

5(7)

I hope that this Court will now help to remedy this situation which is one of the utmost seriousness, involving as it does the right of ordinary people to protect themselves and others and their planet from utter destruction. I hope also that this Court, although it has not allowed the addition of another question to look at the legality of Trident specifically, will nevertheless see the wisdom of at least recommending, in the final ruling, that there be an immediate independent judicial enquiry into the legal status of Trident. It is just not good enough for the Crown to lamely repeat the official government line that Trident is lawful. At Greenock we brought evidence to show that Trident is not only unlawful but also criminal. This decision should not be undermined in any way unless and until a full, independent, publicly accountable inquiry into Trident and present British policy is set up with opportunities for all concerned citizens to present full evidence backed up by testimony from expert witnesses.

To proceed.

Interjection by the Court at Page 32 the end of Paragraph 5(7).

LORD PROSSER: If I can interrupt a bit more, in Paragraphs 5(3) and 5(4) you refer to rulings under the Geneva Conventions Act, seeking prosecution under the Geneva Conventions Act and in fact the attempts have gone wider than that. It is not always under that. It could be ruled on as a matter of International Law.

MISS ZELTER: Yes, there were attempts to do that.

LORD PROSSER: It just seemed a bit narrower than the actual history of events has been.

MISS ZELTER: Now, to proceed. At this stage Miss Zelter continued her written statement at Page 33.

6(1)

The next part of the Petition at 1(c) is also factually inaccurate in that it says that Professors Boyle and Rogers and also Rebecca Johnson were all "held out as

experts on aspects of the development and current content of international law". ⁸¹

6(2)

In fact Professor Boyle was the only one of the five expert witnesses who was held out as an expert on the content of international law. He spoke to its application to nuclear weapons in general and Trident in particular and provided an objective framework for our international law enforcement defence and our necessity defence as well as providing the reasoning and understanding as to why there was no malice in our actions. He also gave evidence on the criminality of nuclear deterrence policy and the criminality of deployment of British Trident submarines. ⁸² 6(3)

He not only referred to the Advisory Opinion of the ICJ but also directly to the contents of international humanitarian law itself especially the Nuremberg Charter, Judgement and Principles that he referred to, for short, as Nuremberg. ⁸³ It is also important to point out that despite the Sheriff’s ruling on the relevance and competence of Professor Boyle, despite the prior advance notice of all of our expert witnesses including the lodging of documents, the Procurator Fiscal did not lead an expert international law witness to counter the evidence of Professor Boyle’s opinion that the threat or use of Trident would contravene international law, that British nuclear deterrence policy was criminal, that the deployment of British Trident submarines was criminal and that individuals have a right to try to stop war crimes. ⁸⁴ 6(4)

Rebecca Johnson’s evidence was also never countered. She was held out as an expert in international security and the relations between the nuclear powers and the non-nuclear powers. She spoke to the nature of the objective facts on the 8^th June, a time when the UK was engaged in bombing Yugoslavia. ⁸⁵

Interjection by the Court at Page 33 Paragraph 6(4) after the sentence "She spoke to the nature of the objective facts on 8th June, a time when the UK was engaged in bombing Yugoslavia". I wonder whether at this point I could ask you to have a look at the Judicial Notes in a Times article and this was where there was a view taken of the Kosovo Crisis.

LORD PROSSER: This just confirms how serious it was.

MISS ZELTER: It was a crisis situation and it was from the Russian point of view.

LORD PROSSER: Specifically at the Kosovo stage, not the earlier conflict.

MISS ZELTER: Yes.

At this stage Miss Zelter continued her written statement.

...She also spoke to the perception by foreign governments that they felt threatened by the UK Trident system ⁸⁶ and to Trident being "an ever present danger" ⁸⁷ She was never held out as an expert in international law although she was held to be an expert on the implementation of the Non-Proliferation Treaty which she testified as having been breached by the UK ⁸⁸ 6(5)

Professor Rogers evidence was not countered either. He was called as an expert on the specifications and contents of the present British nuclear arsenal, ⁸⁹ contents of current British Defence Policy ⁹⁰ the likely and foreseeable consequences of use of the 100 kt Trident nuclear warheads, that are roughly 8 times more powerful than the Hiroshima bomb that was found to be a criminal act under international law in the Shimoda Case, ⁹¹ and the ever-present danger of nuclear accident. ⁹² This testimony was essential to give an objective analysis of how dangerous and imminent the threat of nuclear war and accident actually is and to testify that the warheads deployed on Trident could never be capable of distinguishing between civilian and military targets. He was never held out as an expert on international law.

7(1)

The following section of the Petition at 1(d) is also seriously misleading. It includes a much-abbreviated extract from the Sheriff’s ruling and states that she submitted that the pannels were trying to stop the UK from "continuing to implement its policies in relation to nuclear weapons". ⁹³ This statement’s use of the word "policies" gives a cloak of legitimacy to what the government is doing because most people unthinkingly assume that official policies are obviously lawful. This is part and parcel of the official mind-set that cannot see the UK nuclear forces as other than legitimate military national defence forces and sees our disarmament of ’Maytime’ as some kind of political campaign rather than what it actually was - the prevention of gross breaches of international humanitarian law - namely preparations for indiscriminate mass attack.

7(2)

In fact the Sheriff never held at any time that we were merely trying to stop the UK from "implementing its policies". She had listened carefully to our evidence and submissions and concluded that we acted without malice because we had good reason to believe that the use and threat of British Trident was illegal and given the enormity of the risks involved considered we had a right to try to stop that illegality. She also reported that we acted out of necessity and that whatever the state of the law we would still have felt justified in trying to protect ourselves and others. The Court has the full transcript of the Sheriff’s ruling and also a copy of her full Report and so will be able to make its own mind up. I will not quote it here because to be fair it needs to be considered in its entirety and I am confident that the judges will consider it in its entirety.

Interjection by the Court at Page 35 at the end of Paragraph 7(2).

LORD PROSSER: Before we leave that chapter it refers there to the Sheriff’s conclusion that you had good reason to believe that the use and threat of Trident was illegal and she went from that to saying that given the enormity of the risks we had a right to stop the illegality. So the fundamental argument was not only that you had good reason to believe the threat was illegal but that you were right as a matter of law that they are illegal and that is the foundation for the argument. Yes, just so that we have it separated out.

MISS ZELTER: Yes.

LORD PROSSER: The good reason point is on the rather more specific point of Scots law is there sufficient mens rea apart from the justification argument, whereas the other argument is the entitlement to intervene to prevent a crime and that’s how it is separated out.

At this stage Miss Zelter continued her written statement on Page 36.

8(1)

To proceed to the last section of the first part of the Petition -1(e), it is important to point out that only the charges of malicious mischief have been mentioned. However, there was considerable discussion about the inconsistency of acquitting on the malicious mischief charges whilst convicting on the theft charges. One of the analogies used originally by Mr. McLaughlin at Greenock is very pertinent and bears repeating. He used an analogy of a local person finding a car in a remote area, with a bomb in it, which he knows is destined for a near-by town centre and which will cause damage and death. The person rips the tyres and then rolls it into a nearby loch, thus attempting to prevent the crime. He felt it was inconceivable that this act of crime prevention would be charged as theft. He felt the analogy was direct because the theft and the malicious mischief in the Greenock case arose out of the same set of facts. ⁹⁴ 8(2)

In fact the Sheriff agreed and held that we had acted without the criminal intent required for the constitution of any of the crimes charged in the indictment and directed the jury to acquit the three of us of all four charges including the alternate charge of stealing.

8(3)

There was sufficient evidence - virtually unchallenged by the prosecution - to entitle the Sheriff to hold as she did. The genuineness and sincerity of our convictions about nuclear weapons were not challenged in the Greenock case and were accepted by the Sheriff.

There was no evidence put to show that our views were views which no reasonable persons could reasonably maintain. On the contrary, she made several statements to the effect that our reasonableness was never rebutted. ⁹⁵

9(1)

Answer 2 In the foregoing circumstances the questions of law should be answered as follows:

9(2)

Question 1 asks "In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies to the United Kingdom?" 9(3)

My short answer is - Yes, if an issue of customary international law is properly raised.

9(4)

An issue of customary international law was integral to our defence and having been properly presented in the case and appropriate evidence on it tendered to the Court the first question of law should not be answered in the negative.

9(5)

It is not obvious why leading evidence on the content of customary international law should not be competent in Scottish criminal proceedings where an issue of international law arises. An expert international lawyer properly testifies to the content of international law but not to its application within domestic jurisdiction which is, of course, a matter for the court.

9(6)

There is a word in the phrasing of this question that could be misleading in the context of the argument put forward at Greenock. The word is ’customary’. However, we relied on both customary and treaty law. Within the context of humanitarian law, customary international law is seldom separated from treaty law because the two sources overlap. Humanitarian law is partly codified in the Hague and Geneva Conventions - or treaties. Customary law is therefore not of a completely different kind. I would therefore prefer not to separate out the two sources in this particular question.

9(7)

It is worth pointing out in this context that some customary international law was codified in an international convention and then was domesticated, so to speak, by an Act of Parliament. I refer of course to the Geneva Conventions Act of 1957 and the Geneva Conventions (Amendments) Act of 1995. These Acts were passed in the case of the 1957 Act ’to enable effect to be given to certain international conventions done at Geneva’ ⁹⁶ and in the case of the 1995 Act ’to enable effect to be given to the Protocols additional to the Geneva Conventions of 1949 done at Geneva’ ⁹⁷ They show the connection between customary international law, treaty and domestic law and how the principles of customary law bind them all together. They apply in Scotland.