Fra Poul Eck-Sørensen
Om retsagen mod aktivisterne imod Trident-atomvåben-ubådene i Skotland, bl.a. Ulla Røder fra Danmark
-----Original Message-----
From: TP2000 [mailto:tp2000@gn.apc.org]
Sent: Sunday, October 03, 1999 6:35 PM
Subject: Greenock Court: Francis Boyle (near Glasgow,Scotland)
Notes from Friday Oct 1st , Greenock Sheriff Court
These are not a word for word record, but will give a fair idea of the
proceedings. After the trial we will get a tape and a transcript.
JM Advocate John Mayer representing Ulla
JMc Advocate John McLaughlin representing Ellen
Dispense with interpreters as Prof Boyle only here for today.
Go through credentials.
Ist ? on nukes and PF objects.
Long debate on relevancy of evidence.
Sheriffs ruling: I agree with PF that development of law may not be rel. I
need to be satisfied on immediate necessity at that time to protect oneself
and third parties, and in this particular case, I would wish to hear expert
evidence on such necessity.
There is also another matter. Whether the various accused had a right under
law to do it and a belief that they were acting according to law, is not
sufficient. This case goes a little bit beyond that in respect of Helen
John and I have of course read the full decisions in that case.
This case can be differentiated from that because at the time of the trial,
no real evidence on Int Law, although in their opinion High Court stated
that they had seen the opinion of the ICJ, noted that they took account of
customary Int Law, and Humanitarian Law, as well as Charter of UN & rel Int
conventions we do not know what their opinion would have been if they had
heard expert ev on the whole matter.
As a Sheriff I am bound by what the High Court has said in this case, and
it will be reflected in any charge to the jury as well as the rest of the
law.
If this case goes to appeal, then I think that an experts evidence on Int
Law on the whole question of nuclear weapons in relation to Scots Law must
be before the High Court. So that with all the knowledge they can make a
decision. In making this decision I am concerned for the accused rights to
a fair trial.
I think it right that I do hear ev of FB AND any subsequent expert
witnesses led by the defence on Int Law & necessity at the time.
I am not allowing ev on the whole history of the peace movement!.
12.30pm FB in witness box
JM Covered a bit more of credentials, West Point, books written,
lectures
in Sov Union etc
JM You will no doubt be familiar with the concept of a Crime against
Humanity.
FB This goes back to the Nuremberg Principles. I have been reading of
the
Pinochet case in the House of Lords and the Nuremberg Prin apply here. They
were developed as a result of Hitler's intent to exterminate people. Tied
in to Nur Prin is the concept of a War Crime, the wanton devastation of a
city or district.
JM Did Nuremberg only outlaw killing of people, did it go into planning
and
the support that that involved?
FB Yes, it was signed in 1949, in addition to the substantive offences,
it
also criminalised planning, preparation, conspiracy and incitement.
Our Governments put these in to prevent and deter future such conduct, so
that we don't have to wait until 6 or 10 million are dead before you can
act.
JM When you say 'you' who do you mean? First you have to have some idea
that such conduct is going on?
FB Yes it does extend down to ordinary citizens. These principles apply
to
everyone, all citizens are bound by them .
JM Bound?, are these 15 people here (points to jury), do they have an
obligation to go and do something about a war crime that is about to happen?
FB It would all depend on your knowledge. If you knew that there was a
war
crime going on you would have a right , but not an obligation, that rests
with the chain of command.
JM Its not a clear line?
FB Members of the military have a duty to stop a superior, (gave
Vietnam
example)
Nuremberg was turned into a formal treaty, like other treaties such
as
Geneva Conventions, Genocide act, Geneva Protocols.
JM I see members of the jury writing. These documents form production
number 14, and the jury may see them whenever they please.
JM What mischief were these principles designed to alleviate?
FB Goes back to WWII, Nazi atrocities, there were wide gaps in the law
to
prevent this behaviour.
JM Spitting of atom led to atomic weapons. (We have an expert witness
later
on who has taken lectures from Einstein!)
Atomic weapons became refined?
FB Development of atomic bombs done in secret, no real attempt to
relate
that to Int Law. After war when thermonuclear bomb developed (like Trident
warheads), many nuclear scientists quit, because they took the view that it
could only be used for genocide. In fact the gov. programme was illegal.
JM In your opinion, focusing on Trident II, are there any circumstances
when the possible threat of use of this kind of warhead on Trident can be
legal.
FB I do not believe so. I agree with the scientists. Cannot be used in
any
lawful manner, it is a mass indiscriminate weapon. 10 X Hiroshima. The
Geneva Convention requires discrimination between military and civilian
targets.
JM What's wrong with nukes causing collateral damage?
FB Nuremberg prohibits the wanton destruction of a city. A 100KT bomb
would
destroy a city. Most of Britain's Trident warheads would be used on Moscow
and would kill millions. This is criminal.
JM So 'indiscriminate' is a key word?
FB Inhumane weapons are also prohibited
And weapons that cause lingering suffering, such as radiation are
prohibited,
But the main problem is that they are indiscriminate.
They are most probably going to be used against a city. You cannot justify
destroying a city to get at a military target.
JM If I build a submarine and armed it with 48 nuclear warheads and
kept
it in my backyard would that be illegal? Would my possession of it be
illegal, if it was in my backyard?
FB They are in your backyard!
They are not just possessed , they are at 15 minutes notice to fire. When
they go to sea they are prepared to use them.(ref to US Tridents, presumes
UK the same because we use their technology)
JM We get them from you?
FB Yes, well you lease the missiles from us
JM We rent them from you!!?
Have you seen the Strategic Defence Review?
FB No but read the US one
JM When Trident is in the water and ready to fire they are ready to go
to
war, they are on a war footing. They are not there for fun, they are there
for war?
FB yes.
PF objects JM withdraws the question (which has already been answered!)
JM What is illegal about Trident?
FB ICJ, A threat to commit a crime is illegal
JM But what about just possessing it.?
FB You don't just possess it. It is at 15 minutes notice to launch.
The ICJ answered the question, the US and UK govs are acting illegally. The
World Court ruled that if the use is illegal then the threat is illegal.
JM But we're members of the UN?!
FB The development of nuclear weapons is done in secrecy, it is never
approved by lawyers.
JM We've grown up with that culture, but people know more about them
now?
FB It all started in wartime, even the vice-president didn't know about
them until the president died.
JM Has any country that possesses Trident ever initiated on open court
case
on there legality.
FB At the World Court proceedings all the nuclear weapons states showed
up.
Both the USA and the UK tried to argue scenarios for using nukes. The WC
refused to endorse any of these scenarios as legal. Not one of the nuclear
weapon states tried to justify using nuc weapons against cities.
Adjourned for lunch
Court resumed at 2.20pm. Prof Francis Boyle in witness box
JM Began by establishing that FB was an expert on nuclear weapons policy,
nuclear targeting and an expert on Trident II (certified by an American
court as such)
JM What is International Law ?
FB Int Law is part of our law and your law. Int treaties, agreements
like
Nuremberg, a binding part of law. There is also Customary Int Law which is
like Common Law, that is applied here, it is routinely applied in cases
where those matters are relevant.
JM Apart from US and UK where else does it apply?
FB Every other country in the world is obliged to obey the principles
of
Int Law. The House of Lords endorsed it in the Pinochet decision.
JM So Int Law is everywhere?
FB Yes even if you are not aware of it. People are being prosecuted
today
in the Hague. It is a very living body of law. It is currently being
applied in Bosnia, Croatia and Kosovo.
JM The jury may be able to picture the PM sitting down and signing a
treaty. How does Customary Int Law apply here?
FB Pinochet case. As far as the Law Lords are concerned the UK is bound
by
Nuremberg etc.
JM The principles were originally developed for the Nazi atrocities.
The
World Court accepts that they apply to the threat and use of nuclear
weapons.
I would like to read a passage for comment. It is a quote from an article
in the Journal of Medicine, Conflict and Survival entitled 'Nuclear Weapons
and the Law' written by Ronald King Murray. He is quoting the 1998 Defence
Secretary, now Lord Robertson talking about Britain and NATOs nuclear
defence policy. The quote will be accurate as the author of the article is
the former Chair of the Appeal Court of Scotland.
The PF objects, insists that as he hasn't seen the article, he wants the
jury to retire whilst its admissibility is discussed. JM withdraws the
question.
JM Lets turn to the relationship between the US and the UK re Trident.
Do
they talk to each other ?
FB Targets are made in the Joint Strategic Planning in the US in
Nebraska.
It's pretty much decided by the US, The technology is provided by the
States, the targets are selected by the US. It is the right of the UK PM to
veto things. The UK Trident system functions an adjunct to the US defence
policy. This diminishes British Sovereignty.
JM So the whole strategy is out of the hands of the British?
PF objects. Sheriff rules that FB can testify on Int Law, reasonableness of
actions at the time and necessity, so the question is OK.
FB It's not entirely out of UK hands, but the percentage of British
control
is not that great. NATO strategy reports back to the US. Brit Gov has input.
If an order came to use Trident II, Brit Gov can disregard order, but it is
pretty much an American show!. We own the missiles, They're our missiles. I
regret to say that because I think it diminishes UK sovereignty.
JM So everyone has a right to prevent these things from causing
catastrophe. What would be the effect of asking the British Gov to disarm?
FB Enormous opposition in Washington
JM If a citizen could buttonhole the PM and state their case about
Trident II. Could the PM legally say 'I agree with you, I'll just do that
for you!'
FB The UK has so much reliance and subordination to the US it would
be difficult for any PM to just do it. It would be a very courageous step
for any PM. New Zealand did decide after enormous opposition to prohibit
any nuclear ships from entering NZ waters. There was bullying inflicted by
the US.
Sheriff told FB that he should only confirm what he knew personally. FB
said 'I believe I can testify what I learned in my professional studies
from the normal sources that experts rely upon!'
JM What is wrong with waiting for the assault to take place and then
see where the guilt lies?
FB Nuremberg said that it's not just good enough to deal with war
crimes retrospectively, they have to prevent crime.
JM It's a crime to plan a bank robbery and a different crime to do a
bank robbery. In Int Law is it a crime to plan Genocide?
FB Yes, and conspiracy is a crime too.
JM If I threaten my learned friend with the point of my pen (waves pen
at John McLaughlin's head!)
It would be a crime?
FB Yes, but they are pointing the shotgun at millions of people. The
British nuclear weapons will be used against Moscow. They could kill 8
million people, almost everyone there.
JM We wouldn't know the names of the people who would die?
JM At what stage do you think it's deployed?
FB Some of these subs are capable of launch in the dock
JM These missiles are always employed?
FB They are always ready to be used.
John McLaughlin Is it fair to say that you can comment on Trident
targeting policy because of the link between US and UK.
FB Yes
JMc Have the General Assembly of the UN approved the Nuremberg
Principles
FB Yes, they were unanimously approved by the UN.
JMc What is the difference between nuclear weapons in general and
Trident II
FB You have to consider the nature of Trident II. It is the most
powerful nuclear weapon in the world. It is an offensive first strike
weapon. It's primary purpose is mass destruction . MAD. I do not see how
Trident can be used without falling foul of all legal principles.
JMc Not even in self defence?
FB Not even for that, even then it still must comply with Int Law.
Both the US and the UK have only big weapons. Both Judge Higgins (UK) and
the US judge at the WC condemned the use of nukes on cities. Trident id
designed for wanton destruction of towns and cities.
JMc Explain strategic, sub-strategic and the place of Trident in that.
FB Tactical nuclear weapons had the explosive power of Hiroshima.
When scientists moved to thermonuclear devices they could only be used for
genocide. Britain has said that they might put a lower yield bomb on a
Trident missile.
JMc You are saying that the way that Trident II is used it is a threat.
FB That's the whole purpose of targeting.
Angie Sir Nick Lyell stated to ICJ, 'If all other means are
insufficient.......are there limits to justified self defence?
FB Even if you are acting in self defence, you must obey the rules of
Int Law
AZ Are there any intransgressable rules of Int Law?
FB Even in extreme cases of self defence, Geneva Conventions etc must be
obeyed.
AZ Is it permitted for the UK to defend it's vital interests
FB This is the same argument that the Nazis used at Nuremberg. US
officials use this argument too!.
AZ Can you comment on the threat to use say a 1KT weapon as a warning
shot?
FB The WC refused to endorse that scenario.
AZ In your opinion is there an ever present danger to life?
FB Yes, there are many near launches. They are not on a fail safe
system, they're on a fail deadly system. The situation is extremely
dangerous. You are reading today about Japan, accidents DO happen.
AZ Does a state like the UK which deploys nuclear weapons and engages
in research for the next generation comply with the NPT?
FB There have never been any good faith efforts by any nuclear weapon
states to fulfil their obligations, except maybe Gorbachov.
AZ The UK gov says it's not breaking the law. Can this be true?
FB The Nazi's said that they were just carrying out their domestic
law. This defence was rejected. You simply cannot just plead domestic law
to excuse violations of International Law.
PF Some of these weapons can be legitimately held?
FB No, I cannot see any, and where Trident II is concerned I have no
reservations.
PF So it's your view that all nukes are illegal?
FB All strategic weapons are illegal, any State. I said this in the
Soviet Union.
PF Did the World Court say that nukes are illegal in all circumstances.
FB They didn't answer that question.
PF Para 105 2b. Did they say etc
FB As such.
The PF then tried to argue deterrence theory with Prof Boyle and the old
myths about how bombing Hiroshima & Nagasaki ended the war!
FB said that the fact that no nuclear bombs had been used since 1945 was
'by the Grace of God'
JM re-examined to let FB make the point that you can't just pluck out
bits of the ICJ Opinion.
Trident Ploughshares 2000, 42-46 Bethel Street,
Norwich, Norfolk, NR2 1NR, UK
tel + 44 (0) 1603 611953
fax + 44 (0) 1603 633174
http://www.gn.apc.org/tp2000/
Email : tp2000@gn.apc.org
Nuclear weapons are immoral, dangerous, polluting, a terrible waste of
resources and were found to be generally illegal by the International Court
of Justice on 8th July 1996.
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