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Scottish Court acquits Trident Ploughshares women
Friday, October 29, 1999
This message in in two parts : firstly, a summary of the court case resulting in the acquittal of TP Women; secondly, a transcript of Sherif Gimblet's ruling.
(1) JUSTICE AT GREENOCK
On Thursday 21st October 1999 Sheriff Margaret Gimblet instructed the jury at Greenock Sheriff Court to acquit Angie Zelter, Ellen Moxley and Ulla Roder who had been charged with causing £80,000 damage to "Maytime", a Trident-related acoustic research barge in Loch Goil, during a Ploughshares 2000 disarmament action in June this year. The trial had lasted 18 days.
The three women appeared on four charges which were basically:
- 1. That they maliciously and wilfully damaged the vessel Maytime.
2. That they attempted to steal two inflatable life rafts.
3. That they maliciously and wilfully damaged equipment on board Maytime.
4. That they maliciously and wilfully damaged equipment by depositing it 'in the waters of Loch Goil, whereby said items became waterlogged, useless and inoperable'.
Or, alternatively, that they stole equipment by throwing it in the waters of Loch Goil.
Procurator Fiscal David Webster put forward a very simple Crown case. Basically he proved that the three women were on "Maytime" and that they had done all the damage mentioned in the indictment. The only witness connected with "Maytime" was Iain McPhee, the Barge Master, who knew very little about the research undertaken by his barge or its sister vessel "Newt".
The Defence case involved five expert witnesses. Francis Boyle, Professor of International Law, University of Illinois, gave evidence that international law applies everywhere, and that, due to its destructive power, Trident could not be used in any manner that was lawful. Judge Ulf Panzer from Germany gave evidence of the legitimacy of nonviolent action to uphold the law. He described how he had campaigned to get American Pershing missiles removed from his country culminating in a sit-down blockade of the Mutlangen base, along with 20 other judges. They had learned from the Nazi era the high cost of remaining silent when their government acted unlawfully. Professor Paul Rogers from Bradford University gave evidence on the composition and capabilities of the Trident system, the imminent danger of nuclear war and accidents and of the effectiveness of civil resistance to change official policies. Professor Jack Boag testified about the imminent danger from nuclear weapons.
Finally, Rebecca Johnston of ACRONYM, Geneva, explained the consequences of the failure of successive UK governments to fulfil its obligations to disarm under the Nuclear Non-Proliferation Treaty and how the present administration is continuing to block negotiations. She described how "Maytime" is an essential part of the Trident weapon system, and how other states perceive Britain's deployment of Trident as a threat.
Advocates John Mayer and John McLaughlin represented Ulla and Ellen, but Angie Zelter defended herself. They all submitted that international law applies in Scotland, that the threat or use of nuclear weapons was found to be generally contrary to international law by the International Court of Justice and the deployment of Trident is seen as a threat. In addition, John Mayer put forward a defence of necessity and John McLaughlin argued that although the women had been wilful they had not been malicious. At the end of their arguments both advocates put a submission to the sheriff that she should remove the verdict from the jury and acquit the women.
In addressing the jury Sheriff Gimblett said "I have to conclude that the three in company with others were justified in thinking that Great Britain in their use of Trident ......could be construed as a threat and as such is an infringement of international and customary law. ...I have heard nothing which would make it seem to me that the accused acted with criminal intent."
Trident Ploughshares 2000
(2) SHERIFF GIMBLETT'S RULING
On Thursday 21st October Sheriff Margaret Gimblett instructed the jury at Greenock Sheriff court to acquit Angie Zelter, Ellen Moxley and Ulla Roder, who had been charged with causing £80,000 damage to a Trident related acoustic research barge in Loch Goil, during a Trident Ploughshares action.
The jury then agreed to acquit the accused. The full reasons for her decision were given in court the day before. The following is a reasonable transcript of what she said then:
Greenock Sheriff Court 2.08 pm Wednesday 20th October 1999 - Sheriff Margaret Gimblett -
The defence is based on two matters: Firstly the three accused consider Trident was being used illegally based on an understanding on what international law said and on advice given to them; if they were right that the use and threat of nuclear weapons was illegal, not just possession, then they had a right given the enormity of the risks of nuclear weapons to try and do something to stop that illegality.
Secondly they had an absolute necessity, in which case it didn't matter whether Trident is illegal or not, the necessity was there. In considering this I have really not a great deal to go on other than what the ICJ said in 1996 and their opinion, which although advisory, acknowledges in words what is authoritative and agreed by all. On the face of it very careful consideration should be given to its terms.
In reaching their opinion the ICJ based the opinion on all the body of law that went before it which was carefully outlined. That law was canvassed in court. The opinion did not say possession of nuclear weapons was illegal, nowhere does any law say that.
Even our own High Court of Judiciary has said that possession of nuclear weapons is not itself illegal. Unfortunately because they were not addressed on the law only honest belief they did not go on to consider the law except as far as it related to possession. The Helen John case can be distinguished. Here there is a defence of international law and necessity, but the whole defence hinges on the use made of nuclear weapons now and the perceived threat or threats made by the nuclear state. On the use or threat of use, I would concede that the ICJ did not say that in all circumstances threat or use of nuclear weapons was universally prohibited. Equally there is no conventional law that authorises the threat or use of nuclear weapons.
They issued what may be considered an enigmatic decision which has been read on a number of occasions "the threat or use of nuclear weapons would be generally contrary to the rules and principles of international law applicable in armed conflict and in particular the principles and rules of humanitarian law. However, in view of the current state of international law and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of the State would be at stake."
The last words are important. We do not know what they meant by generally, but their final conclusion implies that the use or threat could only apply in very tight circumstances of self-defence; the very survival of the state. The President of the ICJ said "I cannot overemphasise that the inability of the court to go further than the formal pronouncement at which it has arrived cannot in any way be interpreted as a half-open door to recognition of the legality of the threat or use of nuclear armaments."
Also the way in which the judges voted showed that a majority voted against the use of nuclear weapons. Lord Murray quote on this very helpful given the status of Lord Murray:
"Turning to the central matter the judges were divided until the President's casting vote. The court decided that the threat or use of nuclear weapons is unlawful under all circumstances except last resort self-defence to avoid annihilation. Three of the judges dissenting took the opposite view to the other four dissenters. Four said that nuclear threat or use in not unlawful. The other three considered that nuclear threat or use is always unlawful. It follows that an absolute majority of 10 out of 14 judged that the threat or use of nuclear weapons is either entirely illegal or generally illegal subject to one possible exception. A two thirds majority rejected the general lawfulness of nuclear weapons."
I have the invidious task of deciding on international law as it relates to nuclear weapons. I am only a very junior sheriff without the wisdom or experience of those above me. I have a knowledge of the repercussions which could be far reaching. As a sheriff I took an oath to act without fear or favour in interpreting the law.
A point of international law has been raised here and I have to answer it. I take comfort from the fact that there are other higher courts which can rectify any mistake.
In the absence of anything other than the ICJ and having regard to the article by Lord Murray, in particular the part relating to treaties and conventions... Lord Murray's article concludes, "There then are the principles on which the lawfulness of the proposed use of a particular weapons are to be assessed. It is to be noted that in so far as they consist of international customary law they are part of the domestic laws of this country."
I listened carefully to Professor Boyle and have taken into account all the evidence in this case from him and the other experts and in the absence of any expert contradictory evidence from the crown, I have to conclude that the three accused in company with many others were justified in thinking that Great Britain in their use of Trident, not simply possession, the use and deployment of Trident allied with that use and deployment at times of great unrest, coupled with a first strike policy and in the absence of indication from any government official then or now that such use fell into any strict category suggested in the ICJ opinion . The threat or use of Trident could be construed as a threat, has indeed been construed by others as a threat and as such is an infringement of international and customary law.
The three took the view that if Trident is illegal, given the horrendous nature of nuclear weapons, they had the obligation in terms of international law to do whatever little they could to stop the deployment and use of nuclear weapons in situations which could be construed as a threat.
It follows, if I consider that Angie Zelter, Ulla Roder and Ellen Moxley were justified in the first leg of their defence and having given that as the principle reason the crown has a duty to rebut that defence. They have not done so and so I uphold the three defence submissions in so far as they refer to malicious and wilful damage.
I uphold the comments of Mr McLaughlin with regard to malice. Gordon says "no act is punishable unless it is committed with a criminal mind..." I have heard nothing which would make it seem to me that the accused acted with criminal intent Therefore I will instruct the jury that they should acquit all three accused on charges 1 to 3 which leaves only the alternative in charge 4, they should also be acquitted on the first alternative in charge 4.
If anyone else takes such action they do so at their peril. The law is not clear on nuclear arms. I may be totally wrong. If it goes to appeal I may not be upheld and every case depends on whatever circumstances. What I have said is with regard to the very special circumstances of this trial and in the light of international tension around June 8th.
Trident Ploughshares 2000
Link to further information on Trident Ploughshares 2000.