14th June 2001, Edinburgh High Court
On 14th June 2001 before three judges in the Scottish Appeal Court Brian Quail appealed against his convictions for anti-Trident actions dating back to 1998. This is the statement he gave to the Court. His Appeals were not upheld.
Your Lordships,
My Appeals take place after the Judgement of the Lord Advocates Reference concerning the acquittal of Moxley et al. in Greenock Sheriff Court on October 21st 1999. The result of that Referral being what it is, these proceedings may seem to be doomed in advance, as my case rests fundamentally on the illegality of the deployment of Trident, and the High Court has ruled that this is legal. Nevertheless, I cannot simply accept that judgement uncritically, and let this occasion pass in silence.
Many people mocked those of us who hoped that the High Court Judgement would be positive. Cynicism is an easy role to assume, and a convenient insurance against future disappointment. I, however, hoped against hope that wisdom and integrity would prevail, and that the Judgement would acknowledge the manifest illegality of Trident.
I held these hopes because I am convinced that it is inconceivable that the Common Law of Scotland should tolerate threats of mass murder against the civilian population of any potential enemy state. I am convinced that Scots Law upholds the obligation to respect civilian immunity in war as an absolute and unqualified legal (and moral) imperative, from which there is no derogation. Those who have argued otherwise, notwithstanding their exalted status, have done no service at all to the dignity of the law of this land. It is no matter of pride to have attacked and weakened a fundamental principle of jus in bello. International humanitarian law can only articulate and elaborate what is immanent in the common law of humanity – just gentium – that is, the universal recognition of the restraints and obligations placed on all civilised peoples. Thus I believe that my case would prevail even if there were no Geneva Convention, no Hague Convention, or no Nuremberg principles. [I am content to appeal to the Common Law of Scotland.]
I have publicly asked time and time again, for anyone to give me a scenario wherein a single 100-kiloton Trident atom bomb could be used in conformity with the rules of war. No one has ever done so.
My hopes and the hopes of many others were dashed by the Appeal Court’s Judgement, which I can only describe as illogical, perverse and dishonest.
Illogical, because if Trident were in truth a legal means of defence for this country, then it would be legal for all other countries also. It would thus be permissible for every sovereign state in the world to defend itself with this nuclear ’weapon’ – an absurd conclusion which proves that the original hypothesis is untenable. Ergo, Trident is illegal. The logic may appear to be simple, but it is irrefutable.
Perverse, because it divorces law from its own moral bedrock. Murderous threats are murderous threats. They are already a crime. The conditional threat to commit mass murder already violates all moral and legal restraints, and is no less wicked for being so conditioned.
Dishonest, because it failed to address the actual and existing situation vis a vis Trident. It assumed deterrence is a harm-free policy – it took no cognisance of the catastrophic consequences of human error, or of accidents. It ignored the indubitable consequences of using Trident: the resulting nuclear winter and global devastation; the transgenerational effects of genetic mutation through radioactive poisoning; the violation of the immunity of states not party to the conflict; the consequences of destroying electronic equipment across the continent by EMP (electromagnetic pulse); and the devastating global environmental damage inexorably following the use of Trident.
It evades these facts by describing the indisputable characteristics of Trident as “asserted characteristics” (Judgement para. 63) and refers to “what were described as the inevitable uncontainable radioactive effects” – as if the objective and undisputed consequences of a nuclear explosion were the cranky opinion of a group of ill-educated fanatics.
In a similarly unreal vein, in para. 37 we read: “a danger which is threatened at a future time, as opposed to immediately impending, might be avoided by informing the owner of the property and so allowing that person [i.e. the Ministry of Defence!] to take action to avert the danger, or informing some responsible authority of the perceived need for intervention”. But we who see the dangers of Trident have already “informed the owners of the property” of the danger, and have asked them to take action many times – to no avail. These “responsible authorities” ignore our repeated “informing”. Moreover Trident is in fact imminent. Even as I speak, at least one Vanguard submarine is on patrol on full alert, ready to fire 48 100-kiloton nuclear bombs.
The Court ruled that the laws of war do not apply in times of peace. This verdict defies credibility. As if in peace time it were legal for the state to build concentration camps and gas chambers, to stockpile canisters of Zyklon B gas, to train operatives daily in using these, to openly proclaim its willingness and determination to use these should they feel the “need”, – and yet one were compelled to wait till war was declared before invoking the law to prevent the crime of genocide. Presumably, failing a formal declaration, one would have to wait till the black smoke was pouring out of the chimneys…
Moreover, the High Court is in error in saying that under the International Court of Justice decision there are no restrictions on the use or threat of force in times of peace – the ICJ decision was directly to the contrary. It held that it was unlawful under international law for a State to threaten to use, “or even to signal its readiness to use” force which it would be unlawful to use. (ICJ Opinion, para 47). (In fact, at the time of the action of Moxley et al. the UK was at war in Kosovo, and thus the rules of war were, even within the terms of the Court’s own limitations, fully operational.)
In making this ruling that the laws of war do not apply in peace time, the Judgement is hostile to the spirit and force, if not the letter, of the Nuremberg Principles which sought to banish future civilian complicity in state crimes by emphasising the individual’s responsibility to uphold the law. As Professor Richard Falk, Professor of International Law at Princeton, USA, said: “Everyone has the right and duty to say NO to illegal State policy… It is not disobedience but the enforcement of the law to refuse to be an accomplice to the preparation of nuclear war”.
It is noteworthy that the Appeal Court refers to the International Court of Justice as “the court” with a lower case “c” throughout – a small indication of its lack of respect for the foremost judicial authority in the world. It belittles the “opinio juris” as if the term were synonymous with the English “opinion”, that is, a purely casual and personal point of view. But the Latin “opinio” has, in this context, a much more weighty connotation. This is the considered adjudication of the highest specialists in international law, who had undergone many months of study, research and investigation before making their landmark judgement of 8th July 1996 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”. It ill became the Appeal Court to thus belittle the authority and discernment of the highest court in the world.
The Judgement claimed that it would “invite anarchy” for ordinary people to “take the law into their own hands”. But if it is the law – and the respondents always stood on that foundation – that is being acted on, then ordinary people who recognise their moral and legal responsibilities to defend and implement the law, and to sabotage or frustrate terrorist threats, are not “taking the law into their own hands” but acting as responsible citizens, conscious of their right and duty to uphold the law.
In general, the Judgement reads throughout as if it were a leisurely, theoretical discourse concerning a somewhat unreal future hypothesis, a remote academic symposium divorced from present actualities. There was no indication of any appreciation of the imminent devastation that Trident threatens. No awareness that we are dealing -literally – with the ever-present possibility of immediate global destruction – in coldest fact, of the end of the world.
Even more the Judgement was blind to the heinous crimes already committed by the nuclear states, Britain included.
A little example. An editorial of the Engineering Alumni magazine of the University of California in April 1960 noted that “nuclear testing has so far produced about 6000 babies born with major birth defects world wide” (NB. That was more than 40 years ago. Who knows the current total?) It added that, “you must weigh this acknowledged risk with the demonstrated need of the United States for a nuclear arsenal”.
The same callous disregard for human life is evident in the British drive for nuclear dominion. Let me speak here from personal experience. Some years ago in Glasgow I met a woman called Lijon Eknilang from the Marshall Islands in the Pacific, who was here on a speaking tour of the UK. AS a result of nuclear tests, she had given birth to six dead babies – her sister had had 13 stillbirths. These are her own words:
“Of my family these are the survivors: father, mother, brothers Tomi, Freddi; sister Api. These are the dead: sisters Lijon, Sari, Mata; brothers Willi, Kunio, Paul, Apolo. This is our history: Blindness. Thyroid tumours. Miscarriages. Jellyfish babies. Mental retardation. Sterility. Lung cancer. Kidney cancer. Liver cancer. Sarcoma. Lymphoma. Leukaemia. I do not weep for my lost babies. Two stillbirths. Three jellyfish – glassy, pulsing discoids that made the nurses sick. I no longer weep for the dead. We are the people of the Marshall Islands. We are your experiment…”
No one has explained to Lijon Eknilang – or to me – why she and her fellow islanders had to suffer major birth defects and deaths, so that the United Kingdom could have a nuclear arsenal.
Hers is just one story. A report published by the IPPNW (the International Physicians for the Prevention of Nuclear War) in 1991 entitled Radioactive Heaven and Earth estimated that nuclear weapons tests would result in 430,000 deaths by the year 2000. (Quoted in the Observer, 4th August 1991).
Lijon came here seeking justice and recognition of the crimes committed against herself and many, many others: The aborigines of Australia who suffered radiation sickness and death through uranium mining and the nuclear tests at Maralinga and Montebello; the test victims of the USSR in Kazakhstan and Novaya Zemlya; the test victims of the USA – the Shoshone peoples of Nevada, whose land is permanently contaminated; the British servicemen used as human guinea pigs in tests at Christmas Island; and all the many unnamed and unnumbered victims of our craving for nuclear might. These people have suffered a terrible injustice, and the crimes committed against them cry to heaven for justice.
The law does not belong to the rulers, to the state, or to judges. It belongs to the people, and it is instituted for their protection against arbitrary power and violence. Why then does the law not hear the voice of Lijon and of many thousands like her? Who will they turn to for justice? And when I, or others, try to speak on their behalf, why will the courts not listen?
The ultimate evil is legal. That is the message that Scotland’s highest Court gave to the world in this shameful Judgement. It was Mohammed Bedjaoui, President of the International Court of Justice, who described nuclear weapons as the “ultimate evil”. It was Lords Prosser, Penrose and Kirkwood who said that this evil was legal.
To our Law Lords I say this:
The nuclear victims cry to you for justice – and you gave them nuclear justification.
They look to you for wisdom – and you gave them sophistry.
They seek compassion – and you gave them casuistry.
The weak and the helpless plead for the protection of the law – and you give them nuclear apologetics.
This tranquillising Judgement could have been written by any obsequious aparatchik in the MoD.
It was a matter of a few minutes to read out the Judgement. Four negatives to four questions. For me, it was an abrupt and brutal end to a cold overnight vigil in Parliament Square. There, Faslane peace-campers, Buddhist nuns, and Ploughshares supporters – some 20 of us in all – had come together to give silent witness to the cause of peace and justice. My partner Barbara and I sat in the doorway to St. Giles, claiming silent sanctuary against nuclear murder. On the Cathedral steps we placed some candles and a little vase with daffodils; also a Celtic cross from Iona, and a Russian icon of peace – Rublyev’s “Trinity”. As a contemporary said, by the contemplation of this “the hateful dissension of this world is vanquished”. Our little peace shrine was silent witness to our hopes and prayers. In that long vigil many thoughts and images floated into my mind…
In the Bikini tests, dolphins escorted the ships into the lagoon. They stayed behind, curiosity stirred by the underwater activity. The explosion blew a column of boiling water 6000 feet into the air, before dissolving into a mushroom cloud of radioactive gas and spray. The dolphins were vaporised. A paradigm to contemplate. It is not suicidal folly that impels society to cooperate with the death machine. It is loyalty, sociability, and intelligence hideously misplaced. Exploited by the system indifferent to their humanity, the people frolic and play as they follow the ship of extinction. What is this ship of death? It is the inhuman, mechanistic, and merciless power of wealth and war, our – yet so ancient – idol, Moloch. And to this our nuclear idol we are ready to sacrifice our children, and the children of the world.
Albatrosses sizzling, smoking, their feathers on fire. Blinded, twisting hideously contorted birds crashing into things. Pigs dressed in clothing to measure the effect of burns on protected and unprotected skin. Monkeys placed in tubes round the test site. Troops with no protective clothing – given sunglasses and told to turn their back on the explosion. Animals and humans alike. Guinea pigs. Victims to the lust for power…
A doctor bends over a little Japanese girl, and lifts her eyelids. The sockets are empty. Her eyeballs have melted. He gently turns her to the side and with tweezers extracts a thick white maggot from her arm. Why does irradiated flesh fester so quickly? I do not know. She is still alive, her little chest heaving like a captured sparrow…
Fukuhara Eiji, aged nine. He reaches out to catch a dragonfly and wakes up in a black nightmare filled with the screams of the damned. “Mizu!… mizu!… Water!… Water! he thinks he is in Hell, till he sees his mother and sisters crawling through the blackness. Then he reasons; “this can’t be Hell, because my mother is good, she would no be in Hell with me“. Their clothes are trailing behind them in shreds. Only it’s not their clothes, it is their skin. “Mizu…mizu..” … Miserere nobis, Domine. See what we have done to our brothers and sisters. To your children, O God. God forgive us….the blast of our blasphemy…
A little boy sits in a tramcar in Glasgow. The windows are pasted with giant letters made of ticket paper. VJ….VJ…VJ…. Victory in Japan. Universal rejoicing. No more war. I can read the letters. Few think of the bodies blasted and burnt in a far-away city…To these and to our human targets today, our hearts and our minds are closed. Denial still blinds us.
All that night in Parliament Square we waited and hoped and prayed that the afflictions of these victims would find justice at last, here in Scotland. A blessed chance for our Law Lords to show their independence and vision. Would they rise to the occasion?
I had feared an evasive reply, a fudge. But as Angie Zelter said, you can always make a cake out of fudge. I had secretly hoped for victory. I did not anticipate such a total and abject evasion of responsibility…
Let me recall a parable told by Anthony De Mello, the writer and theologian.
“Once an eagles egg was placed under a hen. The egg was duly hatched, and the eagle chick was reared with all the other barnyard chickens. He learned to scratch in the dirt and to find worms, to cluck and cackle, and to flap its wings uselessly. So he lived his life till the end, content enough with his existence. When his last day came and he lay dying he looked up into the sky and saw a magnificent creature circling high in the blue sky. Full of wonder and admiration, he asked one of the hens: “What is that?” She replied: “Don’t you know? That is an eagle. That is what you are…”
I say to our Law Lords: You could have soared high, like the golden eagles of our beautiful mountains. You could have surveyed the broad horizon, above and beyond the petty view of earth-bound complacency and compliance. You could have fulfilled your finest nature, and brought honour and glory to the Law of Scotland. But no. Rather, you chose to scratch in the dead dirt of prevarication and equivocation, seeking the worms of approval, the favour and gratitude of the powerful. Your flightless wings kept you bound to the farmyard mire of partiality and prejudice.
Like many others since that shameful Judgement, I have gone through the whole gamut of responses. Incredulity. Anger. Anguish. Shame. And at the end of it all, pity. Pity for the dead souls who did not find the courage to speak the truth to power. Poor men clothed in death’s colour. Black gowns, heads capped with alien dead hair. You could have flown on eagle’s wings, given witness to the world to the majesty and freedom of the law, to the supremacy of justice. But you chose otherwise.
It must have been an easy task for men of your formidable skills and intelligence to play the time-honoured role of the sophist, and “make the worse seem the better cause“, to evade and distort the truth. But do you realise how you have betrayed justice, and blighted the hopes of so many good people, not only here in Scotland, but throughout the world?
As in the courts of Germany in the 30’s, the recording of your craven complicity in state crimes will stand forever in the annals of history.
Poor flightless eagles. Poor Scotland. Poor world. God help us all.