SCND homepage

Legality

Weapons of mass destruction including chemical and biological weapons are regarded by most countries as illegal. The International Court of Justice meeting on the 8th of July 1996 advised that:


" ...the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law."


However, the court left open the possibility that the use of nuclear weapons as a last self-defence might be justified.

Campaigners who take direct action (see NVDA) to impede nuclear activities say that they are upholding the law that nuclear weapons are illegal.


The Ultimate Evil


" The nuclear weapon, the ultimate evil, destabilises humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law, not to mention their long-term effects of damage to the human environment, in respect to which the right to life must be exercised."

- Judge Bedgaoui, President of the World Court

THE LEGALITY OF TRIDENT REVIEW - 6th DECEMBER 2000

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 laww. 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 their 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 aquitting 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 asked the High Court Justiciary in Edinburgh for a clarification of the Greenock Sheriff's ruling on points of law. The questions he raised were:

  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 palcing 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?

The High Court's decisions did not effect the women's aquittal but it set down authoritative guidelines for future cases. The four questions were about Scottish law and related 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, was under review in a nuclear weapon state. The potential global implications of this Reference Hearing were, therefore, immense. The Court's answer to all four questions was "no", thus indicating its acceptance of the conventional view that the possession of nuclear weapons by Britain was legitimate.


back to top