F.A.Boyle

The Criminality of Nuclear Deterence
An Introduction
by Francis Anthony Boyle

With the Reagan administration's ascent to power in 1981, tens of thousands of American citizens engaged in various forms of nonviolent civil resistance activities in order to protest against distinct elements of a U.S. foreign policy that violated basic principles of international law. These citizen protests led to numerous arrests and prosecutions by federal, state, and local governmental authorities all over the country. This author gave advice, counsel and assistance to individuals and groups who had engaged in acts of nonviolent civil resistance directed against several aspects of the U.S. government's foreign policy: the Nuclear Freeze Movement, the Sanctuary Movement, the Anti-Apartheid Movement, the Plowshares, and the Pledge of Resistance, among others. I also participated in the defense of individuals who were not part of formal movements but nevertheless resorted to nonviolent civil resistance to protest against the U.S. government's policies on nuclear weapons and nuclear deterrence, Central America, Southern Africa, and the Middle East.

For example, in the criminal case of People v. Jarka, No. 002170 in the Circuit Court of Lake County, Waukegan, Illinois, the twenty defendants were protesting the Reagan administration's offensive strategic nuclear weapons buildup and U.S. military intervention in Central America before the Pentagon's Great Lakes Naval Training Center on November 14, 1984. The defendants were over-charged with the fairly serious crimes of mob action and resisting arrest despite the fact that they had merely linked arms and sat down in the middle of the road in front of the military base. After a three-and-one-half-day courtroom trial in which defense attorneys produced eight expert witnesses (including this author) on nuclear weapons, Central America, and international law, the defendants were acquitted of all charges on April 15, 1985.

The Jarka defendants were acquitted by invoking the traditional common law defense known as "necessity," which was incorporated into the Illinois Criminal Code. According to Chapter 38, § 7-13 of the Illinois Revised Statutes (1983), conduct which would otherwise be an offense is justifiable by reason of "necessity" if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his or her own conduct. In Jarka the greater public and private injury with respect to Central America was successfully argued to be crimes against peace, crimes against humanity, war crimes, grave breaches of the Geneva Conventions, as well as violations of the U.N. Charter, of the O.A.S. Charter, and of the International Court of Justice's 1984 interim Order of Protection on behalf of Nicaragua, which the Reagan administration had perpetrated on a daily basis. To the best of my knowledge, Jarka was only the second case in the United States where civil resisters against the Reagan administration's contra terror war in Nicaragua were acquitted.

But the Jarka case constituted an even more significant precedent for the defense of anti-nuclear protesters by using international law. For the first time ever in the annals of American jurisprudence, the judge in the Jarka case actually instructed the jury that the threat and use of nuclear weapons violated international law and thus were criminal. To quote the exact language of this pathbreaking instruction that was given to the Jarka jury by Judge Alphonse F. Witt: "The use or threat of use of nuclear weapons is a war crime or an attempted war crime because such use would violate international law by causing unnecessary suffering, failing to distinguish between combatants and noncombatants and poisoning its targets by radiation."1 In other words, nuclear deterrence itself (i.e., "threat of use of nuclear weapons") was criminal under basic principles of international law.

The stunning victory in Jarka was immediately used as a precedent for establishing the defendants' right to the necessity defense with respect to international law in Chicago v. Streeter, No. 85-108644, Circuit Court of Cook County, Chicago, Illinois, whose criminal trial was held approximately one month later. In the Streeter case, the nine defendants attempted to meet with the South African Consul at his office in Chicago to discuss that country's criminal policy of apartheid. When he refused to do so, the defendants refused to leave the corridors of a building outside the Consulate offices, and were eventually arrested and prosecuted for violating a provision of the City of Chicago Municipal Code prohibiting "unlawful trespass."

To substantiate their defense of necessity, the Streeter defense attorney team presented at trial several expert witnesses who testified to the effect that the government of South Africa had been committing international crimes by pursuing its policies of apartheid and that the defendants acted reasonably in their efforts to prevent the continuation of these crimes.2 Once again, in this case too, the jury acquitted the defendants of all charges brought against them. To the best of my knowledge, Streeter was the first outright acquittal for a pure anti-apartheid protest case in the United States. We even made the New York Times!

As a direct result of the Jarka and Streeter acquittals with their attendant news media publicity, numerous attempts were made around the entire country by defense attorneys seeking to invoke these two cases as precedents for the defense of other individuals who had engaged in acts of nonviolent civil resistance protesting against the Reagan administration's illegal policies toward Nicaragua and El Salvador, against South African apartheid, and of course against the Reagan administration's offensive strategic nuclear weapons buildup as well as against nuclear weapons and nuclear deterrence in general. There then occurred many such nonviolent civil resistance cases in which criminal charges were dismissed, or else the defendants acquitted, because of Jarka-type defenses founded upon principles of international law.3

During the past two decades of my defending these cases, there have transpired monumental changes in world politics that are too complicated to analyze here. Most notable, however, were the collapse of the Warsaw Pact and the disintegration of the Soviet Union, leaving the United States as the only self-proclaimed nuclear superpower in the world--the "hyper-power." Needless to say, however, de jure apartheid has been dismantled in South Africa. The much vilified African National Congress has come to power there. And Nelson Mandela became the celebrated President of the Republic of South Africa. Fortunately, there is no further need to defend people involved in peaceful nonviolent protests against the criminal South African apartheid regime.

The same holds true for direct United States military intervention into Grenada, Nicaragua, Guatemala, Honduras, El Salvador, Costa Rica, etc. At least for the time being, the U.S. wars against the Peoples of Nicaragua, El Salvador, Honduras and Guatemala have been wound down. The Sanctuary Movement has basically disappeared.
To be sure, in 1989 the Bush administration invaded Panama in a last-ditch attempt to hold onto a U.S. presence in the Panama Canal.4 Then in 1994 the Clinton administration invaded Haiti in order to maintain U.S. hegemonic domination over the Caribbean Basin and for domestic political reasons. And the United States government is still engaged in various types of overt and covert interventions into the domestic affairs of Latin American states under the pretext of waging its fictitious and fatuous war against drugs5--especially now in Colombia.

At least for the time being, however, there are no longer large numbers of people all over the United States protesting against direct U.S. military intervention into Latin America. To be sure, quite recently many people have been arrested, prosecuted and sent to jail for peaceful nonviolent protests designed to shut down the U.S. Army's so-called School of the Americas at Fort Benning, Georgia that has trained many of the military dictators who have plagued our sister Latin American Republics for decades.6 And there is still the U.S. colony in Puerto Rico and the ongoing protests against the U.S. Navy's bombing campaign at Vieques.

But nuclear weapons are still with us! Every year there are still thousands of people in the United States and around the world who engage in peaceful nonviolent protests against nuclear weapons and nuclear deterrence. As documented in the seminal monthly newsletter Nuclear Resister, every year hundreds of these anti-nuclear resisters are arrested and prosecuted for their principled opposition to weapons of mass extermination whose destructive power far exceeds even the wildest fantasies of Hitler.

It is for this reason, then, that I have decided to produce this book that will concentrate exclusively on the principles of international law relevant to nuclear weapons and nuclear deterrence. I have included several pieces that I have written on various problems of nuclear deterrence and international law that have arisen during the past five decades of humankind's nuclear era--from the U.S. atomic bombings of Hiroshima and Nagasaki in 1945 through the 1996 World Court Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, to our stunning victory over the U.K. Trident 2 nuclear weapons system at Greenock, Scotland in late 1999, and beyond. By collecting these writings here, it is my hope to provide the reader with a fairly comprehensive analysis of the numerous and complex legal issues related to nuclear weapons and nuclear deterrence in one volume. Their basic argument is that nuclear weapons and nuclear deterrence are criminal under well-recognized principles of international law.

First, I have included my study The Lessons of Hiroshima and Nagasaki, that was originally published in my book The Future of International Law and American Foreign Policy, © Copyright 1989 by Transnational Publishers, Inc. I would like to thank Heike Fenton, President of Transnational Publishers, Inc., for permission to reprint this chapter here. As conclusively established therein, the atomic bombings of Hiroshima and Nagasaki were heinous war crimes in gross violation of well-recognized principles of international law that had been fully subscribed to by the United States government as of August 1945. In other words, the nuclear age itself was conceived in the original sins of Hiroshima and Nagasaki. Humankind still anxiously waits for an apology, repentance, and atonement by the United States. For the sake of completeness, the historical research set forth here should now be supplemented by Gar Alperovitz's The Decision to Use the Atomic Bomb (1995), which discussed my study at pages 529-30.

Next, I thought it would be important to include some materials dealing with the historical development of the so-called nuclear arms control process between the United States and the former Soviet Union, the successor-in-law to which the United States now considers to be the Russian Federation. In this regard I have reprinted a paper I delivered on Nuclear Weapons and International Law: The Arms Control Dimension before the 21st Senior Conference convened at the United States Military Academy at West Point in 1983 on the general subject of Nuclear Deterrence. This Senior Conference was precipitated by the Reagan Administration's promulgation of a new "protracted nuclear war-fighting" doctrine that was implemented by means of a massive build-up of U.S. offensive first-strike strategic nuclear weapons systems, against which the Jarka defendants would soon protest. My West Point presentation was originally intended to serve as a lawyer's response to this criminal folly. Nevertheless, this paper was indeed published by the United States Military Academy in The Nuclear Debate: 21st Senior Conference Proceedings (West Point: 1983), and later in Volume 4 of the New York Law School Journal of International and Comparative Law, No. 2 (1983).

At this 21st Senior Conference my co-panelists for the afternoon session on "Nuclear Weapons and International Law" were Professor Alfred P. Rubin of the Fletcher School of Law and Diplomacy and Professor Harry Almond of the Pentagon's National War College. Our paper presentations were followed by a lengthy and vigorous debate with the conference participants, who consisted of about 200 current and former high-level U.S. military officers and civilian government officials actually involved in supervising American nuclear weapons and nuclear deterrence policies, including the three-star General in charge of war-operations at the Pentagon, the Director of the Defense Nuclear Agency, the U.S. Air Force's Special Assistant for Nuclear Targeting, Brent Scowcroft, George Ball, Richard Garwin, etc. During this extended debate, I energetically argued with all the participants about why and how international law was indeed relevant to U.S. nuclear deterrence policies.

This West Point Senior Conference debate is where I first formally articulated my basic proposition that nuclear weapons and nuclear deterrence are criminal under well-recognized principles of international law. My remarks during this debate drew heavily upon my then ongoing study The Relevance of International Law to the Paradox of Nuclear Deterrence, which is reprinted here from my Defending Civil Resistance Under International Law (1987). This article analyzes the entire history of U.S. nuclear deterrence theories and practices in order to reach that conclusion. This analysis still holds up today. Despite the end of the Cold War, nothing has changed about U.S. nuclear "deterrence" strategy: It still calls for launching an offensive first-strike with strategic and tactical nuclear weapons systems against any adversary.

Both at the time and in retrospect, my West Point Senior Conference appearance, paper, presentation, and debate on Nuclear Deterrence made me feel like the biblical Daniel going into the proverbial lion's den at Babylon.7 But at a cocktail party reception that evening, a one-star General on the U.S. START I Delegation for the Reagan administration specifically came over to tell me somewhat apologetically: "Professor Boyle, I want to assure you that we here in the military take the Geneva Conventions and the Hague Regulations quite seriously!" And well the Pentagon should since the laws of war and international humanitarian law were originally designed to protect soldiers and sailors in combat.

In order to continue the nuclear arms control saga up to these START I negotiations that were initiated by the Reagan administration, I have included my study Star Wars vs. International Law: The Force Will be Against Us!, that was originally published in The Future of International Law and American Foreign Policy, ©Copyright 1989 by Transnational Publishers, Inc. Once again, I would like to thank Heike Fenton, President of Transnational Publishers, Inc. for permission to reprint this chapter here.

I include these two chapters on nuclear arms control negotiations in order to substantiate my basic thesis that nuclear arms control and reduction agreements are essentially a fraud that has been perpetrated upon the Peoples of the world by all the nuclear weapons states: Lulling people into a false sense of security, and thus deflecting and dissipating substantial public pressure for real nuclear disarmament. Generally speaking, these agreements have permitted their respective nuclear weapons states parties to phase out their obsolete nuclear weapons systems while at the same time replacing them with more advanced, sophisticated, threatening, destabilizing, dangerous, and destructive nuclear weapons systems.
The 1996 Comprehensive Nuclear Test-Ban Treaty (CTBT) is no exception to this general rule. Thereunder, the then five acknowledged nuclear weapons states (U.S., U.K., Britain, France, China) locked in their nuclear monopoly and nuclear superiority over the rest of the non-nuclear signatory states in the world. While at the same time, these Nuclear Five Great Powers were enabled to continue the research, design, virtual testing, production and deployment of the next generation of nuclear weapons and their related delivery systems by means of their preponderant control over high technology: advanced nuclear accelerators, high-energy lasers, super-computers, hydrodynamics, nuclear fusion, etc. In the United States this next stage of the strategic nuclear arms race is currently being conducted under the euphemism of the so-called Stockpile Stewardship and Management Program.8 And there are national equivalents in these other nuclear weapons states as well. This gross hypocrisy on the CTBT by the Nuclear Five Great Powers contributed directly to the nuclear weapons explosions by India and Pakistan in the spring of 1998.

Despite these self-styled nuclear arms control and reduction agreements, the United States, Russia, Britain, France and China have all violated and today still stand in gross violation of their solemn commitments made in article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT):

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.
Since 1968 not one of these nuclear weapons states has taken seriously its treaty obligations to negotiate in good faith toward the goal of achieving nuclear disarmament, let alone general and complete disarmament.9 The only exception might conceivably have been the denuclearization proposal tendered by then Soviet leader Mikhail Gorbachev to then American President Ronald Reagan at their summit meeting in Reykjavik, Iceland in November of 1986.10
Gorbachev's stunning proposal ultimately came to naught because of Reagan's myopic fixation on his so-called Strategic Defense Initiative (SDI), publicly identified with the moniker "Star Wars." In any event, today all of these Nuclear Five Great Powers stand in material breach of the NPT.11 Their longstanding, collective, and illegal recalcitrance on these solemn NPT requirements directly contributed to the nuclear weapons explosions by India and Pakistan in the spring of 1998.
Even worse yet, in November of 1997 the Clinton administration promulgated a new nuclear war-fighting doctrine that was specifically targeted against so-called "rogue states" in the Third World by means of adopting Presidential Decision Directive (PDD) 60.12 The primary legal problem with this new doctrine is that it blatantly violates the self-styled "negative security assurances" given by the United States, inter alia, as an express condition for the renewal and indefinite extension of the Nuclear Non-Proliferation Treaty (NPT) by all of its non-nuclear weapons states parties in 1995. According to the relevant part of this U.S. Declaration that was approved in U.N. Security Council Resolution 984 (11 April 1995):13

The United States reaffirms that it will not use nuclear weapons against non-nuclear-weapon States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons except in the case of an invasion or any other attack on the United States, its territories, its armed forces or other troops, its allies, or on a State towards which it has a security commitment, carried out or sustained by such a non-nuclear-weapon State in association or alliance with a nuclear-weapon State.
Not surprisingly, PDD 60 has been implemented by means of a large-scale and expensive "improvement" of offensive U.S. nuclear weapons systems.14

This new Clinton nuclear war-fighting doctrine and its related nuclear weapons systems contradict and severely undermine the entire NPT Regime as well as the CTBT Regime. To be sure, there very well might be some relatively tiny "rogue states" lurking out there somewhere in the Third World.15 But today the United States government has become the sole "rogue elephant" of contemporary international law and politics.

In this regard, U.N. Security Council Resolution 984 (11 April 1995) explicitly referred to the U.S. Declaration as "security assurances," and the U.S. government officially both referred to and entitled its Declaration as "security assurances." Therefore, because the Clinton administration violated its own solemn "security assurances," PDD60 constitutes an ongoing Nuremberg Crime against Peace. Article 6 of the Nuremberg Charter states in relevant part as follows:16
....
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
...
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. [Emphasis added.]

To the same effect is the sixth principle of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, which were adopted by the International Law Commission of the United Nations in 1950:17
PRINCIPLE VI
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
...
[Emphasis added.]
Notice that both of these elemental sources of public international law clearly provide that the "planning" or "preparation" of a war in violation of international "assurances" such as the aforementioned U.S. negative security assurance constitutes a Nuremberg Crime against Peace. Such is PDD60!

Despite rumors to the contrary, the sons and daughters of Reagan's Star Wars are still alive and well today. The "leadership" of the Republican party in the U.S. Congress are still pushing for the development, testing, and deployment of high-tech anti-ballistic missile systems that would clearly violate the terms of the 1972 U.S.-U.S.S.R. Anti-Ballistic Missiles Systems (ABM) Treaty. It is the opinion of this author that the Pentagon has already been developing a prohibited nation-wide ABM System under the guise of deploying an extensive network of so-called "Theater Wide" anti-missile interceptors, some of which are based upon Star Wars technology.18 Then in January of 1999, the Clinton administration publicly importuned Russia to amend the ABM Treaty out of significant existence upon pain of its outright abrogation by the United States. It appeared that then Russian President Boris Yeltsin might go along with this insidious and retrograde overture. Hence, the analysis of the ABM Treaty set forth in this study shall remain relevant to the public debate over its continued utility for quite some time.19

With the collapse of the Soviet Union and the impoverishment of Russia leaving the United States as the world's "only superpower" or "hyperpower," we are getting to the point, if we are not there already, where only the United States has the capability to launch an offensive first-strike strategic nuclear weapons attack upon any adversary. For that precise reason, deploying the so-called "national missile defense" (NMD) has become a critical objective of the United States government. NMD is not really needed to shoot down a stray missile from some so-called "rogue state." Rather U.S. NMD is essential for mopping up any residual Russian or Chinese strategic nuclear weapons that might survive a U.S. offensive first-strike with strategic and tactical nuclear weapons systems.

Hence, both the Clinton administration and now the Bush administration have been moving to circumvent, undermine, or abrogate the ABM Treaty in order to deploy NMD. The successful deployment of NMD will finally provide the United States with what it has always sought: the capacity to launch a successful offensive first strike strategic nuclear attack coupled with the capability to neutralize a Russian and/or Chinese retaliatory attack. At that point, the United States will proceed to use this capability to enforce its Will upon the rest of the world. Strategic nuclear thinkers such as Harvard's Thomas Schelling call this doctrine "compellance" as opposed to "deterrence." With NMD the world will be dominated by a U.S. "compellance" strategy. From that demented perspective of global hegemony, it came as no surprise that the then Republican-controlled U.S. Senate rejected the ratification of the Comprehensive Test Ban Treaty on October 13, 1999.
In addition to the ABM Treaty, current United States military activities in outer space also contravene the core commitments set forth in articles I and III of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, the so-called Outer Space Treaty, to which the United States is a contracting party:

Article I
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
...
Article III
States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.

Despite these provisions of the Outer Space Treaty, inter alia, the United States Air Force has proclaimed its intention to become the "Master of Space" and has established a special U.S. Space Command headquartered at Colorado Springs for the express purpose of obtaining U.S. military domination of outer space.20 So much for outer space becoming the common heritage of humankind! The United States is currently striving mightily to defeat the very Object and Purpose of the Outer Space Treaty.

The basic thrust of my analysis set forth in The Relevance of International Law to the Paradox of Nuclear Deterrence was further developed, elaborated and refined in a paper entitled The Criminality of Nuclear Weapons, which is included here.21 This paper was originally delivered as the invited Keynote Address before an International Colloquium sponsored by the International Association of Lawyers Against Nuclear Arms (IALANA) that was held in Berlin in November of 1990. This paper was later published by the Nuclear Age Peace Foundation in 1991 as Booklet No. 27 in its Waging Peace Series, with a gracious Introduction by its President, Mr. David Krieger.

This IALANA conference took place in Berlin shortly after the fall of the Berlin Wall and the reunification of Germany. Yet, most remarkably, in a public speech given in immediate reaction to my Keynote Address before the IALANA conference, a German Brigadier General working for the German Ministry of Defense on nuclear issues informed all the participants that the Nuremberg Charter, Judgment and Principles were nothing more than "soft law". Apparently, the good German General had forgotten all about the German Nazi war criminals who had been executed on the basis of the Nuremberg Charter and Judgment. When I attempted to discuss these matters with him that evening at a reception, the good German General curtly informed me that when it comes to nuclear weapons and nuclear deterrence policies, the German government must "trust" the American government to do the right thing. The blind shall lead the blind!

One generation ago the peoples of the world asked themselves: Where were the "good" Germans? Well, there were some good Germans. The Lutheran theologian and pastor Dietrich Bonhoeffer was the foremost example of someone who led a life of principled opposition to the Nazi/terror state even unto death.22

Today, the peoples of the world are likewise asking themselves: Where are the "good" Americans? Well, there are some good Americans. They are getting arrested and going to jail for protesting against United States nuclear weapons facilities and nuclear deterrence policies. Today, the anti-nuclear resisters of the Plowshares Movement follow in the hallowed footsteps of Dietrich Bonhoeffer in their principled opposition to the U.S. nuclear/terror state.23

As a tribute to these anti-nuclear Plowshares resisters, I have decided to include in this book actual testimony I gave in the prosecution for two counts of sabotage of Mr. George Ostensen by the State of Wisconsin for a Plowshares Action directed against the ELF/Trident 2 Nuclear Weapons Facility near Ashland, Wisconsin. At the beginning of this chapter, entitled Putting Trident 2 on Trial, you will find a brief introduction by Mr. Ostensen's Attorney-of-Record, Ms. Susan Hedman, explaining the facts of the case. The transcript itself has been edited for style, length, typographical errors, etc. Nevertheless, it should provide the reader with a pretty good blow-by-blow account of what actually happened in the courtroom when we put on trial the Trident 2 Nuclear Weapons System as criminal under well-recognized principles of international law.

In the Ostensen trial, we argued the basic working proposition of the Plowshares Movement that nuclear weapons as well as their related components and delivery systems are not really "property." In a typical first year course on Property taught at an American law school, property would be defined as "a bundle of rights protected by law." By contrast, nuclear weapons, their components, and delivery systems are nothing more than instruments of international criminal activity that are condemned, repudiated, and prohibited by international law, including and especially by the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles. Today we would not recognize a property right to a gas chamber at Auschwitz!

Surely, if during the Nazi era any German citizen had possessed the courage and audacity to disable a gas chamber at Auschwitz, today we would all agree that person was a hero and blameless even if he or she had been found guilty of the crime of "sabotage" or "destruction of government property" under Nazi law administered by a Nazi judge in a Nazi courtroom. During the past two decades of defending these anti-nuclear cases, I have been continually reminded of this analogy every time I defended an anti-nuclear resister from prosecution under U.S. Federal law administered by a U.S. Federal judge in a U.S. Federal district court. What is the difference? Well, in Nazi Germany the anti-Holocaust resister undoubtedly would have been executed. Whereas here in the United States of America--"...the land of the free, and the home of the brave"--the anti-nuclear-Holocaust resister would probably be sentenced to spend about five years in a U.S. Federal penitentiary.

To the best of my knowledge, Ostensen was only the second U.S. case in which anyone has been able to obtain an outright acquittal on one count of sabotage for a Plowshares Action directed against an American nuclear weapons facility. It was a unique achievement for everyone involved in this case, and a tribute to the courage and fortitude of George Ostensen. Therefore, I have included the transcript of my testimony here in order to provide the reader with the basic idea of how we obtained this remarkable result by exposing the criminality of Trident 2 to the judge and the jury.

Over the years, I have used this Ostensen transcript to help defend many Plowshares anti-nuclear resisters from some pretty serious criminal charges (e.g., felonious depredation of government property, felonious destruction of government property, sabotage). This track record includes obtaining two more outright acquittals on charges of "sabotage" for another Plowshares Action directed against the exact same ELF/Trident 2 facility in Wisconsin a decade later by Tom and Donna Howard-Hastings.24 In this case, despite gross interference by the judge--who had been Ostensen's prosecutor--we were able to convince the jury that the ELF/Trident 2 System was an offensive first-strike strategic nuclear weapons system that was criminal under well-recognized principles of international law.

The arguments and transcript originally developed in the Ostensen case were later used as the blueprint for obtaining the October 21, 1999 directed verdict of acquittal by a Scottish Sheriff (i.e., judge) in favor of three Trident Plowshares 2000 anti-nuclear resisters at Greenock, Scotland on four charges each for criminal damage to Britain's Trident 2 nuclear weapons facility.25 This spectacular victory over Trident 2 was a much-needed fillip to the worldwide anti-nuclear movement coming almost right after the U.S. Senate had rejected ratification of the Comprehensive Test Ban Treaty on October 13, 1999. But despite these and other anti-nuclear victories in U.S. and U.K. courts, most unfortunately, the Trident 2 Nuclear Weapons System deployed by the United States, and proliferated to and deployed by Britain, will bedevil all of humankind well into the 21st century.

Next, comes my so far unpublished study entitled The Criminality of Nuclear Deterrence that sets forth my current reflections on the dilemma of nuclear extermination that confronts humankind today as we enter upon the next millennium of our parlous existence.26 Here, I have analyzed in detail the 1996 Advisory Opinion by the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons.27 I have also offered some suggestions about how this World Court Advisory Opinion can be used to defend anti-nuclear resisters by using international law.

This analysis has already been put to good use in the defense of the Gods of Metal (GOM) Plowshares. Here five Plowshares resisters disarmed a nuclear capable B-52 bomber at a Pentagon "open-house" held at Andrews Air Force Base on May 17, 1998. They were charged by the United States government with petty "depredation of government property." Their bench trial took place on September 21-23, 1998 at the Federal District Court in Greenbelt, Maryland.

The fact that the United States government did not seek to indict the GOM Plowshares for felonious depredation of government property was a victory for the defendants and international law from the very outset of the prosecution. Usually, the U.S. government indicts Plowshares anti-nuclear resisters for a variety of felonies where the punishment could be anywhere from 2 to about 20 years in prison. However, when the U.S. government has charged Plowshares anti-nuclear resisters with petty offenses instead of felonies, it is because it fears that the international law arguments will get to a jury and produce an outright acquittal. Although charging for a petty offense can shorten the potential prison sentence to six months, it also deprives the defendants of a jury trial in a U.S. Federal court. Generally speaking, in the United States a criminal defendant has a constitutional right to trial by jury if she or he faces imprisonment for more than six months.28

Several years before the GOM Plowshares case, we beat out Federal counts of felonious depredation of U.S. government property for a Plowshares Action directed against a Minuteman III nuclear weapons facility for precisely these reasons. After reviewing the documents we filed in court, apparently the U.S. government feared that the presentation of the international law arguments before the jury would convince the jurors to acquit these Minuteman III Plowshares resisters. So it dropped the felony counts and fell back on simple trespass, thus subjecting the defendants to a bench trial before a U.S. Federal Magistrate without the benefit of a jury. Despite our best efforts, these Minuteman III Plowshares resisters were summarily "convicted" of trespass by the U.S. Federal Magistrate. But six months in a U.S. Federal prison is a lot better than two years!

As is typical in these Plowshares cases, the Federal District Judge in Maryland illegally stripped the Gods of Metal Plowshares defendants of all witnesses willing to testify on their behalf except this author. I was then qualified as an expert on international law, criminal law, and nuclear weapons. I spent 2 ½ hours testifying on the witness stand under oath and subject to cross-examination to the effect that the B-52 bomber is an offensive first-strike strategic nuclear weapons system that is criminal under international law and, in particular, under the World Court's Advisory Opinion on the threat and use of nuclear weapons. A condensed version of this chapter was formally offered into evidence by the Gods of Metal Plowshares (who courageously and quite competently defended themselves in court), and accepted into evidence by the Federal District Judge.29 I was then subjected to a cross-examination on my analysis of the World Court's Advisory Opinion by the Assistant U.S. Attorney prosecuting the case.

Not surprisingly under these circumstances, the Federal District Judge convicted the Gods of Metal Plowshares. Nevertheless, the GOM Plowshares Action became the very first case where the World Court Advisory Opinion was fully argued in any United States court.30 As documented by the Nuclear Resister, the 1996 World Court Advisory Opinion has already ushered in a new era of highly intensified struggle against nuclear weapons and nuclear deterrence by the peoples of the world, and especially by those citizens living in the nuclear weapons states.

Furthermore, in its 1996 Advisory Opinion the International Court of Justice elucidated the basic principles of international environmental law applicable to nuclear weapons. Today, there are large numbers of people all over the world who are protesting against nuclear weapons, nuclear experiments, nuclear energy, nuclear power plants, nuclear powered satellites, and nuclear waste, etc. because of nuclearism's devastating impact upon humanity's global environment. These are critical concerns shared by anti-nuclear resisters who protest on grounds of international law with anti-nuclear resisters who protest on grounds of damage to the environment. I have worked on both types of cases over the years, and occasionally both groups of anti-nuclear resisters do intersect and mutually support each other.

For example, in the Fall of 1997 we built an international coalition of both types of anti-nuclear resisters--spearheaded by the worldwide Green Party--in an unsuccessful effort to stop N.A.S.A.'s launch of the plutonium-powered Cassini spacecraft on the grounds that this threatened a Crime against All Humanity. But it seems to me that a lot more work needs to be done on building a broad-based coalition between these two groups of anti-nuclear resisters around the world. It is toward fostering this objective that I have deemed it worthwhile to contribute this book at this distressing moment in time.31 The concluding chapter deals with the Bush administration's suicidal embrace of nuclear nihilism.

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle@law.uiuc.edu
13 July 2001

Notes:

1. See Francis A. Boyle, Defending Civil Resistance Under International Law 9-10 (1987).

2. See Defending Civil Resistance Under International Law 216-54 (1987).

3. See Neely, Legal Necessity and Civil Disobedience: Preventing the Greater Harms of War and Apartheid, 12 Ill. Bar J. 596 (1986); Aldridge and Stark, Nuclear War, Citizen Intervention, and the Necessity Defense, 26 Santa Clara L. Rev. 299 (1986). See also Campbell, The Nuremberg Defense to Charges of Domestic Crime: A Non-Traditional Approach for Nuclear-Arms Protestors, 16 Cal. West. Int'l L.J. 93 (1986).

4. See Francis A. Boyle, The U.S. Invasion of Panama: Implications for International Law and Politics, 1 East African J. Peace & Human Rights 80 (Uganda: 1993).

5. See, e.g., Jack Nelson-Pallmeyer, War Against the Poor (1990); Alexander Cockburn & Jeffrey St.Clair, Whiteout (1998).

6. See Jack Nelson-Pallmeyer, School of Assassins (1997).

7. See Daniel Berrigan, Daniel (1998).

8. See Christopher E. Paine & Matthew G. McKinzie, End Run: The U.S. Government's Plan for Designing Nuclear Weapons and Simulating Nuclear Explosions under the Comprehensive Test Ban Treaty (Natural Resources Defense Council: Aug. 1997); Greg Mello, That Old Designing Fever, Bull. Atom. Sci., Jan./Feb. 2000, at 51-57.

9. Concerning this objective of achieving nuclear disarmament, see Australian Ministry of Foreign Affairs, Report of the Canberra Commission On the Elimination of Nuclear Weapons (FA76: 14 Aug. 1996). See also General George Lee Butler, Ending the Nuclear Madness, Waging Peace Series, No. 40 (Nuclear Age Peace Foundation: Sept. 1999); Robert Green, The Naked Nuclear Emperor (2000).

10. See, e.g., Richard Falk, Explorations at the Edge of Time 187-88 (1992).

11. See, e.g., David A. Koplow, Parsing Good Faith: Has the United States Violated Article VI of the Nuclear Non-Proliferation Treaty?, 1993 Wisc. L.Rev. 301; Michael Klare, Rogue States and Nuclear Outlaws 175-76 (1995); William Epstein, Nuclear Powers Take a Hard Line, Bull. Atom. Sci., March/April 1997, at 13.

12. See William M. Arkin & Hans Kristensen, Dangerous Directions, Bull. Atom. Sci., March/April 1998, at 26; Hans M. Kristensen, Nuclear Futures: Proliferation of Weapons of Mass Destruction and U.S. Nuclear Strategy (British American Security Information Council: March 1998). See also U.S. Department of Army, Doctrine for Joint Nuclear Operations: JP 3-12 (29 April 1993).

13. S/1995/263 (6 April 1995). See George Bunn, Expanding Nuclear Options: Is the U.S. Negating Its Non-use Pledges?, 26 Arms Control Today, No. 4, at 7-10 (May 1996); John Burroughs, Two Legal Issues Confronting NATO and the Non-Proliferation Regime (Lawyers' Committee on Nuclear Policy: 3 May 1999); Charles J. Moxley, Jr., Nuclear Weapons and International Law in the Post Cold War World 627-29 (2000).

14. See Hans M. Kristensen, Taking the Pulse of the U.S. Nuclear Arsenal (British American Security Information Council: October 1998).

15. See generally Michael Klare, Rogue States and Nuclear Outlaws (1995); Noam Chomsky, Rogue States (2000); William Blum, Rogue State (2000).

16. See The Laws of Armed Conflicts 911, 914 (Dietrich Schindler & Jiri Toman: 3d rev. & compl. ed 1988).

17. See The Laws of Armed Conflicts 923, 924.

18. See, e.g., Geov Parrish, The Pentagon's Trojan Horse: It's Theatre Missile Defense, In These Times, July 23, 2001. See also Warren F. Davis, Technology and Alternative Security: A Cherished Myth Expires, in Alternative Security: Living Without Nuclear Deterrence 43 (Burns H. Weston ed. & contrib.: 1990); Joseph Cirincione, Why the Right Lost the Missile Defense Debate, For. Pol'y, Spring 1997, at 39; George Lewis & Theodore Postol, Portrait of a Bad Idea, Bull. Atom. Sci., July/August 1997, at 18.

19. See, e.g., Issue: Anti-missile Defenses, Cong. Q., Aug. 30, 1997, at 2024-25; Pat Towell & Chuck McCutcheon, Right-Face on Defense Policy, CQ Weekly, Jan. 23, 1999, at 181-82.

20. See William B. Scott, Space Warfare Center Aims to Be 'Nellis of Space', Aviation Week & Space Tech., Sept. 1, 1997, at 49; United States Space Command, Vision for 2020 (1997). See generally Karl Grossman, The Wrong Stuff (1997).

21. See also Nina Tannenwald, The Nuclear Taboo: The United States and the Normative Basis of Nuclear Non-Use, 53 Int'l Org. 433-68 (1999); Chaim D. Kaufmann & Robert A. Pape, Explaining Costly Moral Action: Britain's Sixty-year Campaign Against the Atlantic Slave Trade, 53 Int'l Org. 631-68 (1999).

22. See, e.g., Dietrich Bonhoeffer, The Cost of Discipleship (rev. ed. 1963); Dietrich Bonhoeffer, Ethics (Eberhard Bethge ed. 1955); Dietrich Bonhoeffer, A Testament to Freedom (Geffrey B. Kelly & F. Burton Nelson eds. 1995).

23. See Swords Into Plowshares (Arthur J. Laffin & Anne Montgomery rev. ed. 1996); Philip Berrigan, Fighting the Lamb's War (1996); Murray Polner & Jim O'Grady, Disarmed and Dangerous (1997) (about Daniel & Philip Berrigan). See also Thomas Merton, Passion for Peace (William H. Shannon ed. 1997).

24. See, e.g., Mary Thompson, Wisconsin Protest Case May Signal Redefinition of Sabotage, Christ. Sci. Mon., Sept. 20, 1996, at 3 (acquittal of Tom and Donna Howard-Hastings for alleged sabotage against ELF/Trident 2).

25. See, e.g., Stephen C. Neff, Idealism in Action: International Law and Nuclear Weapons in Greenock Sheriff Court, 4 Edinburgh Law Review 74-86 (2000). See also Ronald King Murray, Nuclear Weapons and the Law, 15 Medicine, Conflict and Survival 126-37 (London: 1999).

26. See also John H.E. Fried, Toward A Right to Peace (1994); Elliott L. Meyrowitz, Prohibition of Nuclear Weapons: The Relevance of International Law (1990); Nuclear Proliferation and the Legality of Nuclear Weapons (William M. Evan & Ved P. Nanda eds. 1995); Matthew Lippman, Civil Resistance: Revitalizing International Law in the Nuclear Age, 13 Whittier L. Rev. 17 (1992); Matthew Lippman, Civil Resistance: The Dictates of Conscience and International Law Versus the American Judiciary, 6 Florida J. Int'l L. 5 (1990); Matthew Lippman, First Strike Nuclear Weapons and the Justifiability of Civil Resistance under International Law, 2 Temple Int'l & Comp. L.J. 155 (1989); David Alan Rosenberg, Nuclear War Planning, in The Laws of War 160 (Michael Howard, George J. Andreopoulos & Mark R. Shulman eds. 1994).

27. See also Richard A. Falk, Nuclear Weapons, International Law and the World Court: A Historic Encounter, 91 Am. J. Int'l L. 64 (1997); Burns H. Weston, Nuclear Weapons and the World Court: Ambiguity's Consensus, 7 Transnat'l L. & Contemp. Probs. 371 (1997).

28. See Louis Fisher, American Constitutional Law 724-25 (3d ed. 1999).

29. See Francis A. Boyle, The Criminality of Nuclear Deterrence, 49 Social Action, April-June 1999, at 156-87 (India).

30. See United States v. Cordaro, et al., United States District Court for the District of Maryland Southern Division, Case No. 98-0237 JKS (1998); Annabel Dwyer Esq., A Legal Perspective on the Trial of the Gods of Metal Plowshares, The New Year One, Vol. 25, No. 3 (Jonah House: Nov. 1998).

31. See generally Atomic Audit (Stephen I. Schwartz ed. 1998); Critical Mass: Voices for a Nuclear-Free Future (Greg Ruggiero & Stuart Sahulka eds. 1996); Jay M. Gould, The Enemy Within (1996). See also Robert C. Aldridge, Nuclear Empire (1989); Bruce G. Blair, The Logic of Accidental Nuclear War (1993).