Trident in the Dock:
Women Contest the Legality of Nuclear Weapons
"It’s a question of our relationship with each
other and with this fragile, delicate earth"
– Ellen Moxley
In June of 1999, three women decided to take international
law into their own hands. Packing a picnic, warm clothes,
and a few hammers, Ellen Moxley, Angie Zelter, and Ulla Roder
set out on a short boat ride that would initiate a legal contest
against the presence of Trident in Scottish waters. The destination
of the women’s journey was the Maytime, a floating
laboratory in Loch Goil. Once there, they boarded the vessel
and began their work of destroying machinery and data that
maintains the UK’s Trident nuclear weapons system.
The women collected research files and computer equipment,
which they then tipped overboard, into the loch. When they
finished their work they telephoned their support partner,
Helen Steven, and sat down for a cup of tea. Helen contacted
the media to tell them that non-violent protesters had occupied
the Maytime. The media phoned the Ministry of Defence,
and so began an action to prove (again) the illegality of
nuclear weapons.
The police, eventually, did arrive, and the women were arrested
and later incarcerated. After spending four and a half months
in prison, they stood before Sheriff Margaret Gimblett at
Greenock Court. In defense of their actions, the Trident Three
cited International Law and the 1996 International Court of
Justice advisory opinion which found that the threat or use
of nuclear weapons would "generally be contrary to the
rules of international law.…"
To the UK Government’s chagrin, the women were acquitted
on all charges. Sheriff Gimblett ruled that they had acted
in accordance with international law and out of necessity.
The court understood that their smaller crimes of trespass
and destruction of private property were initiated to contravene
a greater crime: the readiness of the Trident fleet, which
constitutes the threat of its use. The court’s ruling
conceded that British nuclear weapons are illegal under international
law. Shortly after the three women were released from prison,
the UK Government contested the verdict and brought the case
to the High Court in Edinburgh.
It is not lost on the knowing observer that this appeal was
brought by a government that, when in opposition, declared
a unilateral commitment to nuclear disarmament. When "New
Labour" achieved electoral rule in May of 1997, however,
it appeared that they had undergone a change of heart. One
of their inaugural initiatives was to commission a new Trident
submarine. Thus, the heady days in government have proven
little contest to former anti-nuclear principles, and the
CND memberships of Prime Minister Tony Blair and Foreign Minister
Robin Cook have been relegated to the attic boxes of history.
But pending still, is the outcome of the Lord Advocates Reference.
Underway in the Scottish High Court in Edinburgh, Lord Prosser
and two other High Court Judges have been hearing defense
of international law as a means to prove the illegality of
nuclear weapons. Angie Zelter, representing herself, understands
the rule of law and has submitted weighty testimony drawing
on the International Court of Justice advisory opinion, international
humanitarian law and the Nuremberg Principles.
Having heard the evidence, the judges are expected to give
their verdict in early 2001. If the Lords rule in favor of
the Trident Three, the Labour Government will have a logistical
struggle. Because Scotland is now under "home rule,"
charged with its own Parliament, the UK Government may be
forced to move its illegal Trident fleet from Scottish waters.
More than 80 % of those polled in Scotland do not want British
nuclear weapons based in their home country. In fact, during
the first Scottish election in several centuries, which occurred
in May 1999, the Scottish National Party ran with the campaign
promise to do away with the Trident menace. If the Lord Advocates
Reference finds nuclear weapons to be illegal, this will present
no small task for the government in London, considering that
the entire UK fleet is based in Scotland.
The precedent that may be set in the High Court in Edinburgh
could present substantial obstacles for the international
nuclear fraternity. As such, the Trident Three are on course
to change history. What started with a picnic on the Maytime
might well initiate an actual process of nuclear weapons’
elimination.
Kathleen Sullivan
Educators for Social Responsibility Metropolitan Area, New
York
www.esrmetro.org
The Four Questions Lodged by the Lord Advocate
in his Petition, 21st Jan 2000
1. 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?
2. Does any rule of customary international law justify a
private individual in Scotland in damaging or destroying in
pursuit of his or her objection to the United Kingdom's possession
of nuclear weapons, its action in placing such weapons at
locations within Scotland or its policies in relation to such
weapons?
3. Does the belief of an accused person that his or her actions
are justified in law constitute a defence to a charge of malicious
mischief or theft?
4. Is it a general defence to a criminal charge that the
offence was committed in order to prevent or bring to an end
the commission of an offence by another person?
http://www.gn.apc.org/tp2000/lar/larquest.html
Scottish High Court Ducks Trident Issue
Today the High Court of Justiciary in Scotland appears to
have failed to take a good opportunity to challenge the illegality
of the UK’s Trident nuclear weapon system when it answered
in the negative four questions set by the Lord Advocate in
relation to the acquittal of the "Trident Three"
by Margaret Gimblett.
Trident Ploughshares Press Briefing, March 30, 2001
Confusion Confounded: The High Court’s Opinion on the
Lord Advocate’s Reference in the Greenock Case
"It has to be observed," said the court in paragraph
56 of the opinion it handed down on March 30, 2001, "that
there may be an important issue which is not disposed of"
as a result of the Crown’s failure to challenge the justiciability
"in this court" of the legality of the deployment
of Trident II. That issue is whether the position taken by
Lord Reid in 1964 in Chandler v. Director of Public Prosecutions,
i.e., that no one is entitled to challenge in court "the
disposition and armament of the armed forces," was correct
then and is correct now. The Lord Prosser, Kirkwood, and Penrose
leave the reader of their opinion in little doubt as to where
they stand on this issue: Not only do that call attention
to it in par. 56 with an extensive quote from Lord Reid, but
they return to it in pars. 58 and 60, and significantly, in
the concluding paragraph of their opinion, in the following
terms: "We have grave misgivings as to the justiciability
of the issues which we have been asked to deal with, in relation
to defense policy and the deployment of the Trident."
Having thus aligned themselves with the view that the deployment
of weapons, even those which may be illegal under international
law, is not subject to judicial challenge, it is not surprising
that the judges devoted their opinion to attempting to show
that, in any case, the illegality of Trident II had not been
conclusively proven and procedural errors had been committed
by the trial court. It was not enough to bury the ability
of three courageous women to exercise their Nuremberg obligation
to prevent the commission of crimes against humanity; the
coffin had to be nailed tight....
The court could...have drawn some conclusions from the "unequivocal
undertaking" given by the nuclear powers, including the
UK, at the end of the quinquennial NPT review conference last
year, "to accomplish the total abolition of their nuclear
arsenals." That it did not do so is a matter more for
regret than surprise.
What is surprising, however, is the court’s novel theory,
in par. 95, that humanitarian law does not apply in time of
peace. Saddam Hussein will be pleased to hear that attempts
to discourage him from producing weapons of mass destruction
lack legal justification because he is not currently engaged
in armed conflict (although he may be technically in a state
of war with a number of countries). Surely some distinction
must be drawn between those parts of humanitarian law, like
the mistreatment of prisoners, which by definition apply only
to the conduct of hostilities, and preparations for war, including
the manufacture and deployment of illegal weapons.
In sum, the court not only failed to find justification in
the narrow sense of the term, but justice in the broad sense.
Peter Weiss, President
Lawyers’ Committee on Nuclear Policy
www.lcnp.org
For more information contact:
World Court Project, 67 Summerheath Road
Hailsham, Sussex BN27 3DR, UK
Tel & fax: + 44 (1) 1323 844 269, www.gn.apc.org/wcp
Trident Ploughshares, 42-46 Bethel Street, Norwich, Norfolk,
NR2 1NR, UK
