These are not a word for word record, but will give a fair idea of the proceedings.
JM: Advocate John Mayer representing Ulla
JMc: Advocate John McLaughlin representing Ellen Dispense with interpreters as Prof Boyle only here for today.
Go through credentials. 1st ? on nukes and PF objects. Long debate on relevancy of evidence.
Sheriffs ruling: I agree with PF that development of law may not be rel. I need to be satisfied on immediate necessity at that time to protect oneself and third parties, and in this particular case, I would wish to hear expert evidence on such necessity.
There is also another matter. Whether the various accused had a right under law to do it and a belief that they were acting according to law, is not sufficient. This case goes a little bit beyond that in respect of Helen John and I have of course read the full decisions in that case. This case can be differentiated from that because at the time of the trial, no real evidence on Int Law, although in their opinion High Court stated that they had seen the opinion of the ICJ, noted that they took account of customary Int Law, and Humanitarian Law, as well as Charter of UN & rel Int conventions we do not know what their opinion would have been if they had heard expert ev on the whole matter. As a Sheriff I am bound by what the High Court has said in this case, and it will be reflected in any charge to the jury as well as the rest of the law. If this case goes to appeal, then I think that an experts evidence on Int Law on the whole question of nuclear weapons in relation to Scots Law must be before the High Court. So that with all the knowledge they can make a decision. In making this decision I am concerned for the accused rights to a fair trial. I think it right that I do hear ev of
FB: AND any subsequent expert witnesses led by the defence on Int Law & necessity at the time. I am not allowing ev on the whole history of the peace movement!.
FB: in witness box
JM: Covered a bit more of credentials, West Point, books written, lectures in Sov Union etc
JM: You will no doubt be familiar with the concept of a Crime against Humanity.
FB: This goes back to the Nuremberg Principles. I have been reading of the Pinochet case in the House of Lords and the Nuremberg Prin apply here.
They were developed as a result of Hitler's intent to exterminate people.
Tied in to Nur Prin is the concept of a War Crime, the wanton devastation of a city or district.
JM: Did Nuremberg only outlaw killing of people, did it go into planning and the support that that involved?
FB: Yes, it was signed in 1949, in addition to the substantive offences, it also criminalised planning, preparation, conspiracy and incitement. Our Governments put these in to prevent and deter future such conduct, so that we don't have to wait until 6 or 10 million are dead before you can act.
JM: When you say 'you' who do you mean? First you have to have some idea that such conduct is going on?
FB: Yes it does extend down to ordinary citizens. These principles apply to everyone, all citizens are bound by them .
JM: Bound?, are these 15 people here (points to jury), do they have an obligation to go and do something about a war crime that is about to happen?
FB: It would all depend on your knowledge. If you knew that there was a war crime going on you would have a right, but not an obligation, that rests with the chain of command.
JM: Its not a clear line?
FB: Members of the military have a duty to stop a superior, (gave Vietnam example) Nuremberg was turned into a formal treaty, like other treaties such as Geneva Conventions, Genocide act, Geneva Protocols.
JM: I see members of the jury writing. These documents form production number 14, and the jury may see them whenever they please.
JM: What mischief were these principles designed to alleviate?
FB: Goes back to WWII, Nazi atrocities, there were wide gaps in the law to prevent this behaviour.
JM: Spitting of atom led to atomic weapons. (We have an expert witness later on who has taken lectures from Einstein!) Atomic weapons became refined?
FB: Development of atomic bombs done in secret, no real attempt to relate that to Int Law. After war when thermonuclear bomb developed (like Trident warheads), many nuclear scientists quit, because they took the view that it could only be used for genocide. In fact the gov. programme was illegal.
JM: In your opinion, focusing on Trident II, are there any circumstances when the possible threat of use of this kind of warhead on Trident can be legal.
FB: I do not believe so. I agree with the scientists. Cannot be used in any lawful manner, it is a mass indiscriminate weapon. 10 X Hiroshima. The Geneva Convention requires discrimination between military and civilian targets.
JM: What's wrong with nukes causing collateral damage?
FB: Nuremberg prohibits the wanton destruction of a city. A 100KT bomb would destroy a city. Most of Britain's Trident warheads would be used on Moscow and would kill millions. This is criminal.
JM: So 'indiscriminate' is a key word? FB Inhumane weapons are also prohibited And weapons that cause lingering suffering, such as radiation are prohibited, But the main problem is that they are indiscriminate. They are most probably going to be used against a city. You cannot justify destroying a city to get at a military target. JM If I build a submarine and armed it with 48 nuclear warheads and kept it in my backyard would that be illegal? Would my possession of it be illegal, if it was in my backyard?
FB: They are in your backyard! They are not just possessed, they are at 15 minutes notice to fire. When they go to sea they are prepared to use them.(ref to US Tridents, presumes UK the same because we use their technology)
JM: We get them from you?
FB: Yes, well you lease the missiles from us
JM: We rent them from you!!? Have you seen the Strategic Defence Review?
FB: No but read the US one
JM: When Trident is in the water and ready to fire they are ready to go to war, they are on a war footing. They are not there for fun, they are there for war?
FB: yes. PF objects
JM: withdraws the question (which has already been answered!)
JM: What is illegal about Trident?
FB: ICJ, A threat to commit a crime is illegal
JM: But what about just possessing it.?
FB: You don't just possess it. It is at 15 minutes notice to launch. The ICJ answered the question, the US and UK govs are acting illegally. The World Court ruled that if the use is illegal then the threat is illegal.
JM: But we're members of the UN?!
FB: The development of nuclear weapons is done in secrecy, it is never approved by lawyers.
JM: We've grown up with that culture, but people know more about them now?
FB: It all started in wartime, even the vice-president didn't know about them until the president died.
JM: Has any country that possesses Trident ever initiated on open court case on there legality.
FB: At the World Court proceedings all the nuclear weapons states showed up. Both the USA and the UK tried to argue scenarios for using nukes. The WC refused to endorse any of these scenarios as legal. Not one of the nuclear weapon states tried to justify using nuc weapons against cities. Adjourned for lunch Court resumed at 2.20pm. Prof Francis Boyle in witness box
JM: Began by establishing that
FB: was an expert on nuclear weapons policy, nuclear targeting and an expert on Trident II (certified by an American court as such)
JM: What is International Law ?
FB: Int Law is part of our law and your law. Int treaties, agreements like Nuremberg, a binding part of law. There is also Customary Int Law which is like Common Law, that is applied here, it is routinely applied in cases where those matters are relevant.
JM: Apart from US and UK where else does it apply?
FB: Every other country in the world is obliged to obey the principles of Int Law. The House of Lords endorsed it in the Pinochet decision.
JM: So Int Law is everywhere?
FB: Yes even if you are not aware of it. People are being prosecuted today in the Hague. It is a very living body of law. It is currently being applied in Bosnia, Croatia and Kosovo.
JM: The jury may be able to picture the PM sitting down and signing a treaty. How does Customary Int Law apply here?
FB: Pinochet case. As far as the Law Lords are concerned the UK is bound by Nuremberg etc.
JM: The principles were originally developed for the Nazi atrocities. The World Court accepts that they apply to the threat and use of nuclear weapons. I would like to read a passage for comment. It is a quote from an article in the Journal of Medicine, Conflict and Survival entitled 'Nuclear Weapons and the Law' written by Ronald King Murray. He is quoting the 1998 Defence Secretary, now Lord Robertson talking about Britain and NATOs nuclear defence policy.
The quote will be accurate as the author of the article is the former Chair of the Appeal Court of Scotland. The PF objects, insists that as he hasn't seen the article, he wants the jury to retire whilst its admissibility is discussed.
JM: withdraws the question.
JM: Lets turn to the relationship between the US and the UK re Trident. Do they talk to each other ?
FB: Targets are made in the Joint Strategic Planning in the US in Nebraska. It's pretty much decided by the US, The technology is provided by the States, the targets are selected by the US.
It is the right of the UK PM to veto things. The UK Trident system functions an adjunct to the US defence policy. This diminishes British Sovereignty.
JM: So the whole strategy is out of the hands of the British? PF objects. Sheriff rules that
FB: can testify on Int Law, reasonableness of actions at the time and necessity, so the question is OK.
FB: It's not entirely out of UK hands, but the percentage of British control is not that great. NATO strategy reports back to the US. Brit Gov has input. If an order came to use Trident II, Brit Gov can disregard order, but it is pretty much an American show!. We own the missiles, They're our missiles.
I regret to say that because I think it diminishes UK sovereignty.
JM: So everyone has a right to prevent these things from causing catastrophe.
What would be the effect of asking the British Gov to disarm?
FB: Enormous opposition in Washington
JM: If a citizen could buttonhole the PM and state their case about Trident II. Could the PM legally say 'I agree with you, I'll just do that for you!'
FB: The UK has so much reliance and subordination to the US it would be difficult for any PM to just do it. It would be a very courageous step for any PM. New Zealand did decide after enormous opposition to prohibit any nuclear ships from entering NZ waters. There was bullying inflicted by the US. Sheriff told
FB: that he should only confirm what he knew personally.
FB: said 'I believe I can testify what I learned in my professional studies from the normal sources that experts rely upon!'
JM: What is wrong with waiting for the assault to take place and then see where the guilt lies?
FB: Nuremberg said that it's not just good enough to deal with war crimes retrospectively, they have to prevent crime.
JM: It's a crime to plan a bank robbery and a different crime to do a bank robbery. In Int Law is it a crime to plan Genocide?
FB: Yes, and conspiracy is a crime too.
JM: If I threaten my learned friend with the point of my pen (waves pen at John McLaughlin's head!) It would be a crime?
FB: Yes, but they are pointing the shotgun at millions of people. The British nuclear weapons will be used against Moscow. They could kill 8 million people, almost everyone there.
JM: We wouldn't know the names of the people who would die?
JM: At what stage do you think it's deployed?
FB: Some of these subs are capable of launch in the dock
JM: These missiles are always employed?
FB: They are always ready to be used.
John McLaughlin Is it fair to say that you can comment on Trident targeting policy because of the link between US and UK.
JMc: Have the General Assembly of the UN approved the Nuremberg Principles
FB: Yes, they were unanimously approved by the UN.
JMc: What is the difference between nuclear weapons in general and Trident II
FB: You have to consider the nature of Trident II. It is the most powerful nuclear weapon in the world. It is an offensive first strike weapon. It's primary purpose is mass destruction . MAD. I do not see how Trident can be used without falling foul of all legal principles.
JMc: Not even in self defence?
FB: Not even for that, even then it still must comply with Int Law. Both the US and the UK have only big weapons. Both Judge Higgins (UK) and the US judge at the WC condemned the use of nukes on cities.
Trident id designed for wanton destruction of towns and cities.
JMc: Explain strategic, sub-strategic and the place of Trident in that.
FB: Tactical nuclear weapons had the explosive power of Hiroshima. When scientists moved to thermonuclear devices they could only be used for genocide. Britain has said that they might put a lower yield bomb on a Trident missile.
JMc: You are saying that the way that Trident II is used it is a threat.
FB: That's the whole purpose of targeting.
Angie Sir Nick Lyell stated to ICJ, 'If all other means are insufficient… are there limits to justified self defence?
FB: Even if you are acting in self defence, you must obey the rules of Int Law AZ Are there any intransgressable rules of Int Law?
FB: Even in extreme cases of self defence, Geneva Conventions etc must be obeyed.
AZ Is it permitted for the UK to defend it's vital interests
FB: This is the same argument that the Nazis used at Nuremberg. US officials use this argument too!. AZ Can you comment on the threat to use say a 1KT weapon as a warning shot?
FB: The WC refused to endorse that scenario. AZ In your opinion is there an ever present danger to life?
FB: Yes, there are many near launches. They are not on a fail safe system, they're on a fail deadly system. The situation is extremely dangerous. You are reading today about Japan, accidents DO happen. AZ Does a state like the UK which deploys nuclear weapons and engages in research for the next generation comply with the NPT?
FB: There have never been any good faith efforts by any nuclear weapon states to fulfil their obligations, except maybe Gorbachov. AZ The UK gov says it's not breaking the law.
Can this be true?
FB: The Nazi's said that they were just carrying out their domestic law. This defence was rejected. You simply cannot just plead domestic law to excuse violations of International Law.
PF Some of these weapons can be legitimately held?
FB: No, I cannot see any, and where Trident II is concerned I have no reservations.
PF So it's your view that all nukes are illegal?
FB: All strategic weapons are illegal, any State. I said this in the Soviet Union. PF Did the World Court say that nukes are illegal in all circumstances.
FB: They didn't answer that question. PF Para 105 2b.
Did they say etc
FB: As such.
The PF then tried to argue deterrence theory with Prof Boyle and the old myths about how bombing Hiroshima & Nagasaki ended the war!
FB: said that the fact that no nuclear bombs had been used since 1945 was 'by the Grace of God'
JM: re-examined to let
FB: make the point that you can't just pluck out bits of the ICJ Opinion.
Trident Ploughshares 2000.