Briefing for the Trident Hearing

THE LORD ADVOCATE'S REFERENCE No 1 2000
14th to 20th November 2000, High Court of Justiciary, Edinburgh.

The Context.

Over 30 years ago the nuclear weapon states undertook to disarm all their nuclear weapons in the Nuclear Non-Proliferation Treaty (NPT). In 1996 the International Court of Justice (ICJ) reaffirmed that this promise is a legally binding obligation. On 20th May 2000 all NPT member states, including the UK, agreed to a Programme of Action on Nuclear Disarmament which further committed them to "An unequivocal undertaking…to accomplish the total elimination of their nuclear arsenals…"

The July 1996 Opinion of the International Court of Justice also confirmed that nuclear weapons, like all weapons, are subject to the constraints imposed by international humanitarian law. These proscribe the use of weapons that cannot discriminate between military targets and civilians. On the basis of test data and other evidence it is scarcely imaginable that any nuclear weapon, including the British Trident system deployed from Faslane, could comply with these restrictions. The UK government has presented no reasoned argument to show that Trident could ever be threatened or used lawfully.

The Greenock Ruling.

At Greenock Sheriff Court in October 1999 Angie Zelter, Ellen Moxley and Ulla Roder of Trident Ploughshares were charged with malicious damage. On 8th June 1999 they had boarded the floating laboratory Maytime moored in Loch Goil and thrown equipment worth several hundred thousand pounds into the Loch. The laboratory is vital to the Trident programme as it researches, tests and maintains the ability of the Trident submarines to remain undetected under water whilst on patrol.

From the beginning of their case the three women openly admitted that they had purposely destroyed the equipment. Their defence was that they were engaged in crime prevention through the disarmament of illegal and criminal weapons of mass destruction. No evidence was called by the Prosecution to rebut this argument. In acquitting them Sheriff Gimblett allowed that the Trident Ploughshares view is a reasonable one and arguable in a court of law. She also ruled that there was no criminal intent in their action because it was based on a sincere belief that they were acting to prevent a greater crime, in effect a continuing criminal conspiracy to contravene international humanitarian law.

The Lord Advocate's Reference.

The Lord Advocate of Scotland has asked the High Court of Justiciary in Edinburgh for a clarification of the Greenock Sheriff's ruling on points of law. The High Court's decisions will not effect the women's acquittal but it will set down authoritative guidelines for future cases. The four questions are about Scottish law and relate to one particular nuclear weapons system Trident, but the general principles are the same for any civilised country. For the first time, the application of international humanitarian law to nuclear weapons, as clarified by the Advisory Opinion of the International Court of Justice, will be under review in a nuclear weapon state. The potential global implications of this Reference Hearing are, therefore, immense.

The first stage of the Reference took place on 9-13 October. The issue of the legality of British nuclear weapons was being discussed along with detailed arguments about the International Court of Justice Advisory Opinion of 1996. There are five parties to the hearing: the crown advocate, Angie Zelter, Gerry Monihan QC (amicus curea for Angie), John Mayer / Ian Anderson advocates for Ulla Roder and John McLaughlin / Aiden O'Neill QC for Ellen Moxley. Each of these teams is allowed to make two speeches. By Friday 13 October they had not finished the first round of speeches. So the hearing will resume on Tuesday 14 November and is expected to continue until Monday 20 November.

Legal documents for the trial are on the Trident Ploughshares website.