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.

The Four Questions Lodged by the Lord Advocate in his Petition, 21^st 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.

"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.

For more information contact:

Trident Ploughshares, 42-46 Bethel Street, Norwich, Norfolk, NR2 1NR, UK

777 UN Plaza - 6th Floor - New York, NY - 10017 - Ph: 212.682.1265 - Fax: 212.286.8211 - info@reachingcriticalwill.org
This site was created by Kache Productions ©2008