Trident Ploughshares
Lord Advocate's Reference
14th November 2000

Scottish High Court Told UK Nuclear Threat is Real
Nuremberg Principles Give Activists Right to Intervene

As the hearing of the Lord Advocate's Reference resumed today in the High Court in Edinburgh, Advocate John Mayer, on behalf of Trident Three member Ulla Roder, has been arguing that the women were right to intervene to try to stop Britain's ongoing nuclear crime.

All parties to the hearing accepted that the Nuremberg Principles were an established part of customary international law as had been agreed by all the judges in the Pinochet case. Mayer went on to argue that these principles, which spell out the duty of the military etc. not to obey illegal orders, by extension conveyed a right on ordinary citizens to intervene to uphold the law and protect the vulnerable. Lord Prosser pointed out that such a right was already established in the recognised defence of Necessity, though he added that some analysis of the situation was required before intervention was undertaken. Mayer pointed out that the right to intervene must be backed by objective knowledge.

Mayer also dealt with the issue of threat. Under international law, to threaten an illegal action is in itself illegal. Mayer quoted a speech in the House of Commons by the then Defence Secretary George Robertson. Robertson said that the UK's nuclear deterrent was well in place and went on to say that, "No-one should mess with us."

The hearing will resume tomorrow when Aidan O'Neill, QC, will give his submission on behalf of Ellen Moxley. Earlier today MSP Tommy Sheridan was threatened with 14 days in prison for his refusal to pay the £250 fine he was given today in Helensburgh District Court for his part in an anti-Trident action. (see below)

In spite of a cogent defence, MSP Tommy Sheridan was threatened with 14 days in prison for his refusal to pay the £250 fine he was given today in Helensburgh District Court for his part in an anti-Trident action.

Tommy was appearing on a charge of breach of the peace connected to the "Crimebusters" blockade of Faslane naval base on 14th February, when he was one of the 185 arrested. In a skillful cross-examination of police witnesses he established that his deportment on the day had been entirely peaceful and non-threatening and that the context for his arrest was his attempt to prevent ongoing crime against international humanitarian law. When discussing the conversations he had had on the day with the arresting officers he referred to the fact that one officer had remarked that Tommy was heavier than when he had last arrested him. Tommy's explanation was that the constant rain had made his clothes heavier!

From the witness box he gave a crisp summary of the case against Trident. As a weapon of mass destruction unable to distinguish military from civilian targets Trident breached the basic principles of humanitarian law. It was common knowledge that UK nuclear weapons were actively deployed and in a constant state of readiness. This was not mere possession - it was threat and as such illegal.

When Procurator Fiscal McRae attempted to narrow the issue down to his refusal to desist from blocking the road and obstructing the traffic Tommy again set his actions in context. No breach of the peace had been committed - it was a matter of trying to prevent a crime of much greater magnitude. He went on to say, "If we don't all take a stand on this one, none of us will be left standing." Justice of the Peace John McPhail found him guilty without any explanation. When Tommy indicated he would not pay the fine the JP made it clear that if he had not paid within 28 days he would go to prison. A Trident Ploughshares spokesperson said: "Given the deplorable track record of this court the verdict was entirely predictable. Tommy is setting a great example of responsible citizenship and we are calling on the many other MSPs who are against Trident to take a similar principled stand against lawlessness."

Lord Advocate's Reference
15th November 2000

Britain Must Obey International Law on Trident

In the seventh day of the hearing of the Lord Advocate's Reference of the Trident Three ruling in the High Court in Edinburgh, a Queen's Counsel has been arguing that both the British government and the British courts are bound by the principles of international law.

Aidan O'Neill, QC, appearing for Trident Three member Ellen Moxley, said that the Scotland Act and the European Convention on Human Rights ensure that all matters (including the conduct of the State) are "justiciable", i.e., that their lawfulness or otherwise are a matter for the courts, "such as to include even matters of the defence of the realm... where, as in the present case, fundamental rights issues are at stake." There is therefore no Royal Prerogative to break the law.

In a strong challenge to the High Court itself he said, "...this court has to be willing to apply the requirements of the Rule of Law against Executive action, regardless of questions of realpolitik or expediency." On the legality of Trident he demonstrated that NATO itself had acknowledged that nuclear retaliation, was central to its strategic doctrine. This threatening stance was illegal.

At the end of his submission the judges put it to him that to allow ordinary citizens to intervene as the Trident Three had was to open the door to anarchy and vigilantism. O'Neill maintained that if the states activity in question was illegal, if all other avenues of redress had been exhausted, and if the persons concerned could be reasonably sure that their actions would impede the illegal act, such intervention was justified.

A Trident Ploughshares spokesperson said: "Today Aidan O'Neill has made it even more difficult for this court to avoid its clear duty: to recognise the UK nuclear weapons system

Lord Advocate's Reference
16th November 2000

Maytime Disarmer Challenges High Court to Declare Trident Illegal

At the continuing hearing in the High Court in Edinburgh of the Lord Advocate's Reference, which is reviewing the trial of the Trident Three, Angie Zelter, in her second submission to the court, has issued a strong challenge to the bench to put an end to "uncomfortable fudging" and give their ruling that Trident is illegal.

Angie, surrounded by QCs and Advocates, was one of the three women who took action against the Trident barge Maytime and is now representing herself in the highest court in the land. Referring to the claim that a Trident attack could be justified as the use of reasonable force against an aggressor, she pointed out that a nuclear response was not at all like hitting a bully back on the nose. A more reasonable analogy would be standing prepared at any minute to burn down the bully's home, thus murdering the bully's family and endangering the whole neighbourhood.

In order to demonstrate the imminent danger posed by nuclear deployment she quoted extensively from a speech by General Lee Butler, former Commander in Chief of the US Strategic Command. Butler was convinced that, "We escaped the Cold War without a nuclear holocaust by some combination of skill, luck and divine intervention,..." and he pointed out that the US nuclear forces were still on hair-trigger alert. Responding to the claim that justifying the intervention of ordinary citizens would lead to anarchy she suggested that, "... far from being anarchic, it is the mark of a civilised country that its members are prepared to assist in the maintenance of good order."

She poured scorn on the concept that the practice of the nuclear states in deploying nuclear weapons weakened the case against them in international law. If that were true, the law could protect no-one from violence. Quoting at length from the ICJ Dissenting Opinion of Judge Weeramantry she showed that threat was the very essence of nuclear deterrence. She said that the ability of the court to examine the core questions properly had been seriously hindered by the failure to allow the evidence that had been presented at Greenock. That evidence had proved that the women's action had been capable of preventing crime.

In conclusion, she asked the court to make a number of statements relating to the applicability of humanitarian law to Scotland, to the right of ordinary citizens to act to uphold the law and the responsibility of members of the armed forces to obey international law re Trident.

The judges followed her submission attentively and did not interrupt. When she finished people in the public gallery stood up in salute. "She was brilliant!" said fellow Maytime disarmer Ulla Roder.

Earlier, the Crown attempted to "rubbish" Sheriff Margaret Gimblett's conduct of the Greenock case and the quality and relevance of the defence expert witnesses. QC Duncan Menzies claimed that Professor Francis Boyle and Professor Paul Rogers, expert witnesses at Greenock, had not brought any valid evidence to the court, but had relied on hearsay and press reports for their assertions. He said that Sheriff Gimblett should not have admitted them and should have left the verdict with the jury.

Menzies gave what he claimed was a hypothetical example of the legal use of Trident. If a Chinese ship armed with nuclear weapons was sailing towards New Zealand with a declared intent to fire, an ally of New Zealand could fire a nuclear weapon at the ship and this could be legal, since no innocent civilians were involved.

When the QC claimed that the existence of the Non Proliferation Treaty implied some acceptance of the legality of nuclear weapons Lord Prosser rejoined that the existence of negotiations to de-commission IRA weapons bore no implication that these weapons were legal.

The hearing is expected to conclude tomorrow with the judgement due in some weeks time.