George Farebrother. May 2000: adapted from an article written for Quaker Forum and some thoughts by Angie Zelter of Trident Ploughshares 2000.
The Rule of Law is the warp, if not the weft, of our society. It means that encounters with authority are defined by our citizenship and not by the colour of our eyes or whether the police officer knew my father. It constrains us, but it also protects us. It is not to be violated lightly, wantonly, or unadvisedly.
This is my instinctive understanding of the law. I am naturally law-abiding and tend to regard law breakers as outside civil society. I find it difficult not to do as I am told by the police. I am inclined to believe that politicians and officials are telling the truth and am constantly surprised by the continuing flow of evidence to the contrary.
However, I am also a nuclear abolitionist. The continuing existence of nuclear weapons is an immediate and ominous threat to the world, and an insult to any imaginable system of morality. Opposing nuclear weapons is not like most political causes which admit of ethically based controversy. Actually using a nuclear weapon, with a full awareness of the devastation and suffering it would cause, is not just immoral: it flouts the very concept of morality: and the policy of nuclear deterrence presupposes a willingness to use nuclear weapons.
Opposing nuclear weapons is unusual in that, although this means opposing British Government policy, we actually have the law on our side. This is because the law, however convoluted and self-serving, has a core of formalised and minimal morality. When normal human co-operation breaks down, the law steps in. It recognises our basic sense of fairness - that we should not harm someone for the wrongdoing of another; and that simply being born in the wrong time and place is not an adequate reason for being held hostage for the interests of political leaders.
This is part and parcel of our sense of citizenship. Evidence for the part of Sussex I live in, shows that certain estates were "laid waste" during William the Conqueror's 1066 campaign. The properties belonged to Harold Godwinson, his foe. The peasants were the chattels of an enemy and therefore fair game for massacre and looting. We have left this medieval approach behind except, it seems, when it comes to inter-state nuclear terrorism.
However, international humanitarian law is steadily bringing states into line with the fact that we are citizens and not subjects. This area of law is about what you can and cannot do to people in wartime. Thus it forbids the use of weapons which are too indiscriminate in their effects to distinguish between military targets and civilians near them; which would cause disproportionate damage and unnecessary suffering; which use poison; which would have long-lasting effects on the environment; and would violate the rights of neutral states. These restrictions are inviolable - they apply in all circumstances, even if a country is on the verge of defeat. Being on the losing side is no defence for committing war crimes.
In a historic Advisory Opinion in 1996, the International Court of Justice (ICJ), or World Court, re-stated these principles and confirmed that they apply to nuclear weapons. Moreover, the Court was unable to find any particular threat or use of nuclear weapons which could comply with international humanitarian law, especially those which require that any weapon must be capable of distinguishing between civilian and military targets.
The legality of nuclear weapons - as with every other weapon - is not to be decided by their nature - the fact that they depend on the fusion or fission of nuclear particles; it depends on their effects. The UK deploys all its nuclear weapons on four Trident submarines. Each vessel carries 16 missiles, each of these with three warheads of about 100 kilotons - about 8 times as powerful as the Hiroshima bomb which destroyed most of the city and killed about 100,000 people. Apart from killing and maiming by heat and blast, use of even one Trident missile would uniquely cause widespread genetic damage and poison large areas of land with radioactive fallout for years.
Remembering that the question is what Trident can do, rather than how it works, we can therefore assume that Trident is guilty until proved innocent. The Government must show that it could be used without the near-certainty of incinerating and irradiating enormous numbers of civilians as well as violating the other principles of international humanitarian law.
In spite of persistent questioning over several years, the UK Government has not provided any convincing argument to show that its policy could be lawful. Letters to ministers and questions in Parliament are met with bland assurances and simple assertions that UK nuclear policy is legal. No reasoning is produced to substantiate this claim. We are told that the Government has taken legal advice, but not what this advice consists of. We learn that computer simulations have been made of the characteristics of nuclear explosions - but not of how these would affect populations surrounding likely targets.
With no evidence to the contrary it is natural to assume that any use of Trident would be illegal, not to say criminal. Activists who attempt responsibly and non-violently to frustrate its operation claim that they are acting lawfully. The legal defence is one of "lawful excuse". In the same way, you could legally let down the tyres of a terrorists' truck planning a city centre explosion.
This defence has been used by non-violent direct activists in some British and US court cases. Although they risk arrest and imprisonment, they believe that they are not breaking the law, but upholding it. Actions range from writing leaflets inviting the military to refuse any order to fire a nuclear missile - "incitement to disaffection" - to attempting peacefully to disarm the weapons. I have no moral qualms about such actions. The only restraints are personal courage and commitment.
A shining example is the Trident Ploughshares 2000 campaign which acts on the basis that, since the UK government has signally failed to implement its international law obligation to promote global nuclear disarmament by disarming Trident, concerned citizens must peacefully and responsibly do it themselves. Recently, three women were charged in Greenock Sheriff' Court in Scotland with malicious damage to a Trident-related system which involved throwing overboard from a floating laboratory equipment essential to the submarine's ability to remain undetected. Their basic justification was that any government threatening to use Trident is engaged in a criminal conspiracy to carry out future crimes against humanity in contravention of international humanitarian law. The activists were therefore engaged in crime prevention. So far no court of law has fully upheld this point of view; but there are lawyers of repute who support the activists' defence.
In acquitting the three women in the Greenock case, the Sheriff 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 against a continuing criminal conspiracy to contravene international humanitarian law.
This was as far as the Greenock case went. It did not, for instance, actually declare that Trident, or any other nuclear weapon, is unlawful. However, it led to considerable media discussion of the legal status of nuclear weapons and, more importantly, to the referral of the case to the Scottish High Court for clarification of several points of law relating to the acquittal (which cannot be overturned). The Government's questions studiously avoid any reference to the crucial issue - the legality of Trident. It has always tried to avoid serious discussion of that matter, and simply asserts that its policy of nuclear deterrence is legal. In the Greenock case, the defendants were allowed to call expert witnesses to testify on their behalf. Significantly the Prosecution produced no experts to argue the legality of Government policy. Non-violent direct action is relentlessly helping to expose the fact that, concerning the Government's legal position on deploying Trident, "the Emperor has no clothes".
A letter to the March-May edition of "Peace News" attempts to undercut the international law approach by claiming that the law is irrelevant to issues of such gravity. "Should we understand that the people who make such a fuss about the supposed illegality of nuclear weapons would, if nuclear weapons were declared "legal" after all, just shrug their shoulders and say 'Well, that's OK then', and go and campaign about something else instead?"
A simple answer is that as, in fact, international law - which is part of UK domestic law - does support our aims, then we should use it. However, people must be careful not to give courts the impression that they are simply using them as a publicity stunt or a political vehicle. The best cure for this is the diligent study of the law which many non-violent direct activists do in preparation for their trials.
There is, or should be, a close correlation between law and morality. Law is a rough and ready way of reconciling conflicting rights and interests and focusing our moral beliefs. The law relating to nuclear weapons, as interpreted by the World Court, is an attempt to reconcile the claims of a small but very powerful minority of states with those of the human beings who are the potential victims of nuclear weapons; and the bias is at last swinging towards people rather than governments.
But there is a deeper factor. We are willing to work with an imperfect system on its own terms; but we would still place conscience above the law if the latter consistently fails us. The law is not an end in itself. It is there to serve human needs and interests. Law which grossly fails to sustain the very ends it is there to serve no longer commands public respect, being reduced to a collection of regulations for serving the perceived interests of the state apparatus.
At the most fundamental level, it is arguable that the deployment of nuclear weapons, with the willingness even to contemplate using them, makes a mockery of any tradition of law or morality. If you are willing to use nuclear weapons, then it deprives you of the right to condemn terrorism or to ask other citizens to observe the rule of law.
The law does not function in isolation. It is part of a spectrum of overlapping law-like systems. These range from simple good manners with their unspoken rules buttressed by quite severe social sanctions; to rules of committee procedure which are enforced by peer pressure; to the customs of closed agricultural communities which, in the Middle Ages, gradually acquired the authority of formal law. To ask whether the values at one level can be applied to another is not logically impossible; but it is logically odd. In this sense, to ask the question "Are nuclear weapons legal?" has no meaning. It is like asking whether robbing banks is good manners. The law itself is part of a higher human structure.
It follows, therefore, that nuclear weapons must be brought under the rule of law. In practice, this means their elimination through an enforceable global treaty - as is happening with chemical and biological weapons of mass destruction. The legal pathway can take its place alongside political lobbying, media exposure, and moral persuasion. It can also persuade deferential and cautious people like me to support non-violent direct action, and even to take part in it on occasion. It concentrates the minds of the people involved wonderfully, and gives a public forum for the facts about nuclear weapons and the moral arguments with which we counter them. In sum, it is a potent tool to change the characterisation of nuclear weapons from ultimate security asset and viable military option to unusable security problem with pariah status. Carried far enough it can bring political pressure on governments to bring their legal reasoning out into the open, thus exposing its emptiness.