How the "Trident" sheriff got it wrong

Sheriff Gimblett’s recent decision1  to acquit the three Trident protesters has generated much political hype and led to excessively exaggerated headlines as to the legal ramifications of the decision. This article seeks to insert a modicum of legal reality and hopefully readdress the balance between the international law that currently exists and that which is being sought.

In acquitting the three women, Angela Zelter, Ellen Moxley and Bodil Roder, Sheriff Gimblett appears to have departed from an application of the law as understood in Scotland, allowed her heart to rule her head and has at best oversimplified international law and at worst misunderstood the international legal position altogether.

Sheriff Gimblett allegedly founded her decision on the argument advanced by the defence that the women felt an obligation “in terms of international law to do whatever they could to stop the deployment and use of nuclear weapons in situations construed as a threat”. She characterised the circumstances surrounding the incident as “very special circumstances” sufficient to permit commission of a crime so as to prevent other crimes. This issue has already been addressed in Scots law in the Helen John2 case heard before Lords Coulsfield, Milligan and Cowie earlier this year. Ms John appealing against her conviction and sentence in respect of a violation of section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, alleged she had acted with reasonable excuse and out of necessity, given her belief that nuclear weapons were illegal.

The appeal judges upheld the conviction and reaffirmed that there was no basis for concluding that the sincere belief held by Helen John amounted to a reasonable excuse based on a particular set of facts precipitating a response by the alleged offender to some “particular and immediate stimulus”, e.g. as in McDougall3 where action had been taken to apprehend the alleged perpetrators of crime from escaping. Reasonable excuse must be interpreted in the context of the facts and particular circumstances of a case.

One is reminded of that perennial essay question set for law students. Is it ever right to disobey the law? Whatever the moral force, the answer from a legal standpoint must be in the negative. Any violation of the law prompted from moral convictions must be accompanied by the perpetrator’s acceptance of the legal consequences for non compliance.

In the John case the Court further concluded that the possession of nuclear weapons was not prohibited in law, and the absence of a crime negated the appellant’s argument that a lesser crime could be committed to prevent a greater one. The judges in the John case did not engage in any legal debate or analysis of the international law position, however such a debate by the Court of Justiciary is imminent following the Lord Advocate’s decision to seek clarification as to the law in the wake of Sheriff Gimblett’s decision.

To what extent does international law apply with domestic law? What is the current international position on nuclear weapons?

Customary international law becomes part of British domestic law provided there is no judicial decision or statutory provision to the contrary.4 A rule of customary international law which is inconsistent with a British statute will not be enforced by the British courts, e.g. Mortensen v Peters5, albeit the state will incur liability at the international level. Treaty law only becomes part of British domestic law if it is incorporated by an express legislative act specifically designed for that purpose. Domestic legislation which conflicts with unincorporated treaty law again is given precedence by the domestic courts6. The point to be extracted from the foregoing is that had the Advisory Opinion concluded that nuclear weapons were illegal under international law and the Opinion was accepted as contributing to the corpus of international law, the Trident programme would not be negated in law given it is regulated by legislation. On the other hand, acceptance of the Court’s Opinion as part of Scots law does not assist anti-nuclear protestors as the Court concluded that the possession of nuclear weapons is not prohibited by international law.

The media has made frequent reference to the 1996 Advisory Opinion of the International Court of Justice7. An Advisory Opinion enjoys the status suggested and is a non-binding albeit persuasive statement of what the law is perceived as being at a particular time. An Advisory Opinion may be sought “on any legal question” by whatever body (other than a state) authorised by or in accordance with the Charter of the United Nations to make such a request. The Advisory Opinion delivered by the International Court of Justice in July 1996 is of significance as it was the first occasion a judicial body had addressed and grappled with the legal niceties of the legitimacy of nuclear weapons. The Opinion did not resolve issues raised beyond doubt and there is evidence reflected within the Opinion of doctrinal and jurisprudential differences held by the judges involved. What is important is, without over simplifying the Court’s legal analysis, to extrapolate the conclusions reached by the Court and to place these conclusions in the context of the contemporary international nuclear debate.

“Is the threat or use of nuclear weapons in any circumstance permitted under international law?” This is the question as formulated by the General Assembly and presented to the Court. The International Court of Justice identified the applicable law as being: “that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons which that the Court might determine to be relevant”.

There was unanimity amongst the judges on the following: that neither customary nor conventional international law specifically authorised the threat or use of nuclear weapons; that a threat or use of force by means of nuclear weapons contrary to Article 2(4) of the United Nations Charter and failure to satisfy the requirements of Article 51, (legitimising the use of self defence in specific circumstances) necessity and proportionality would be unlawful; that a threat or use of nuclear weapons should be compatible with the requirements of the international law applicable in armed conflict and in particular with those of international humanitarian law as well as any specific obligations incurred under treaties and other undertakings expressly dealing with nuclear weapons; and that there existed 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. There was near unanimity that neither customary nor conventional international law comprehensively and universally prohibits the threat or use of nuclear weapons.

The most significant polarisation of opinion and the one which leaves a number of issues unresolved was the Court’s inability to provide a definitive conclusion on the legitimacy of the use of nuclear weapons in certain circumstances where the survival of the state is perceived as being at stake. The Court was evenly split and it was the President’s casting vote which led to the view that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in humanitarian law, but in view of the current state of international law and facts before the Court it could not be concluded definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence, in which the very survival of a state would be at stake.

As a consequence the door has been left open and the Court side-stepped having to make an unequivocal assertion that nuclear weapons would be illegal in all circumstances. The Court afforded no assistance as to what would constitute an exception to the norm save the preservation of the survival of the state. What constitutes the very survival of the state?

A country like India has been provided with room for manoeuvre and can possibly feasibly assert that its requirement for nuclear weapons and the need to carry out underground testing is dictated by self defence demanded by the presence of a nuclear power, China, and an unfriendly neighbour, Pakistan, with a nuclear potential capability. Testing would be permissible by a sustainable argument that the development of nuclear weapons could be required to preserve the survival of India as a state.

The Court in the course of its Opinion made a number of observations which are worth highlighting. Not surprisingly the Court made much of the unique nature of nuclear weapons, in particular their potential for destruction and their ability to cause damage for ensuing generations.

In examining the relevant provisions of the United Nations Charter the Court spelt out that a weapon which is already unlawful per se either by treaty or by custom does not become lawful by reason of it being employed for a legitimate purpose under the Charter. In acts of self defence the Court maintained that the dual conditions of necessity and proportionality must be evidenced and although the proportionality principle in itself would not necessarily exclude the use of nuclear weapons in order to be lawful the requirements of the law applicable in armed conflict would have to be met and (emphasis added) that it would be incumbent on those states making a nuclear self defence response to take into consideration the very nature of all nuclear weapons and the profound risks associated with their employment.

As to the “threat to use force” as interpreted by Article 2(4) (UN Charter) the Court concluded that to be lawful the readiness to use force is premised on the legitimacy of the force contemplated. The mere possession of nuclear weapons could only be characterised as contrary to Article 2(4) if their contemplated deployment was against the territorial or political independence of a state, was contrary to the purposes of the United Nations or in instances of self defence did not conform to the principles of necessity and proportionality.

The Court found that state practice endorsed that the use of certain weapons as illegal is formulated in terms of a prohibition rather than by any explicit authorisation and the Court failed to identify any ban under treaty prohibiting the use of certain weapons of mass destruction or indeed treaties containing a general prohibition of the same kind as exists in respect of bacteriological and chemical weapons.

What the Court did recognise was a growing concern in the international community and that specific treaties dealing with the acquisition, manufacture, possession, deployment and testing of nuclear weapons could be “seen as foreshadowing a future general prohibition of the use of such weapons but they do not constitute such a prohibition by themselves”, whereas those treaties which address recourse to nuclear weapons “testify to a growing awareness of the need to liberate the community of states and international public from the dangers resulting from the existence of nuclear weapons”. However these treaties in the Court’s Opinion did not amount “to a comprehensive and universal conventional prohibition on the threat or use of nuclear weapons as such”.

As to whether any such prohibition could be found in customary international law the Court concluded that the non use of nuclear weapons since 1945 was not done on the basis of opinio juris that their use was prohibited but rather other military, political and humanitarian considerations.

General Assembly resolutions cited pointed not to a customary law prohibition but rather to a sign of deep concern regarding the problem of nuclear weapons and “reveal the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament.”

In respect of the relevant provisions of humanitarian law applicable in armed conflict and the law of neutrality the Court emphasised that, the protection of civilian population and civilian objects and the prohibition of the use of weapons incapable of distinguishing between combatants and non combatants, and the prohibition on causing unnecessary suffering to combatants by the use of certain weapons, must be respected by all states as such norms had crystallised into customary international law.

The Court’s focus on the obligation incumbent on states to “negotiate in good faith a nuclear disarmament” is significant. It acknowledges the reality of nuclear weapons and emphasises the need for cooperation between those on both sides of the political divide. It is possibly this aspect of the Opinion which should be held up by disarmament groups as a call to all members of the international community to pursue in good faith negotiations aimed at multi arms control. The latter will not be achieved through the abandonment of legal principle and the rule of law and the romantic martyrdom of a few individuals.

Professor Rebecca M. M. Wallace,
MA, LLB, PhD
The Law Department,
Napier University, Edinburgh

Footnotes

1. Greenock Sheriff Court, 21st October 1999 v Procurator Fiscal, Dumbarton, July 1999
2. Appeal No: 2656/98, Helen John
3. McDougall v Ho 1985 SCCR 199
4. Chung Chi Cheung v The King [1938] AC 160
5. (1906) 8F(J) 93
6. R v Secretary of State for the Home Department and Another ex parte B Singh [1976] QB 198. This notwithstanding the presumption that legislation will be interpreted to be in conformity with international law rather than against it.
7. Legality of The Threat Or Use of Nuclear Weapons Case, Advisory Opinion (1997) 35 ILM 809 &1343