Report 2

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BNB trial day two, part 1, evidence of Prof Grief.

Firstly, apologies to the defendants, I spelt both your names wrong yesterday.

The defendants are Stellan Vinthagen and Annika Spalde.

Other participants in court are:

His Honour the Recorder of Preston, Judge Openshaw.

for the defence Mr Kamilish representing Annika (Stellan is representing himself)

for the Crown Miss Nicholls and Mr Heyward. Mr Heyward has a special interest in matters of international law.

Today we also heard form defence expert witness Professor Nick Grief ("Good Grief"), Professor of the Law of International Organisations at Bournemouth Uni.

Abbreviations used Def The defence skeleton argument (hopefully to follow) Pro The prosecution skeleton argument ICJ The advisory opinion of the International Court of Justice TDH The TP2000 Tri Denting It Handbook IHL International Humanitarian Law

Defence counsel had given the prosecution a copy of the defence's skeleton argument prepared by Prof Grief a few minutes before the court sat today, and the prosecution was still skimming through it as we started. Defence gave the judge his own copy, then immediately called Prof Grief as an expert witness.

He is the Head of the School of Finance and Law and is a non-practising barrister. He has a BA(law) and a PhD in International Law. He has provided courts with opinions in writing a number of times, and has twice before given evidence or assistance in person.

Defence counsel asked him a huge number of questions all at once, to illustrate the range of topics on which he could assist the court.

What is the status of the advisory opinion of the ICJ re the defence here? What is its status in English law? Can transgressions be called a crime?

Prosecution rose to interrupt. This is not so much evidence, not even expert evidence as it is usually understood, more an observation of the witness's opinion.

The judge replied that the professor was really acting to advise the court. [note, when judges and barristers talk of advising the court, the really mean they are advising the judge] Thus what the Prof said would be treated more like a submission by counsel regarding the law. As a non-practising barrister Prof Grief did not have the right of audience and therefore this was a convenient way for the defence to be able to make their submission.

Prof Grief resumed his testimony/submission/assistance or whatever it was by turning to the Defence Skeleton Argument.

Def 1.1 deals with status of ICJ opinions in general in the domestic law of countries in general. A case had been reported in the Times Law reports where the Malay Government had been obliged to communicate an advisory opinion to its own domestic courts. The International Court later held that advisory opinions had in fact bound the Malay Govt.

Def 1.2 deals with "our" particular advisory opinion. The ICJ held that the dispositif [lawyer's word for a particular part of the ICJ opinion] must be read in the light of the body of the opinion as a whole - ICJ 114.

ICJ 114 2(b) threat or use generally contrary to international law, Judge asked of he took any significance from the fact that this was held by only 8 votes to 7. Prof Grief mentioned that of the 7 who had opposed that wording, 3 wanted stronger wording (ie wanted to say that threat or use was always contrary to international law) so there were in fact 10 judges (apart form the president) who felt that it was at least generally contrary to international law.

A separate opinion by the president of the court declares that this cannot be taken as opening the door to the legality of nuclear weapons.

In the body of the opinion there are a number of paragraphs where the court is leaning towards illegality, e.g. ICJ 114, threat and use stand or fall together, and ICJ 95 the court did not have sufficient evidence to conclude *with* *certainty* [Prof Grief emphasised these words] which is surely leaning heavily towards that conclusion.

Def 1.5 outlines more cases where the court uses words leaning towards illegality. ICJ 36 and ICJ 95 "Scarcely reconcilable" with the requirements of International Humanitarian Law (IHL).

The two cardinal principles of IHL are

-1 discrimination, never to use weapons of a type that makes it impossible to discriminate between civilian and military target.

In some ways similar to rule of proportionality in English law of self-defence, but in fact it goes further and actually overrides all else.

-2 states are prohibited from causing unnecessary suffering to combatants, that is causing harm that is greater than that required to achieve legitimate military ends.

These are intransgressible principles of Customary IHL based on the continuously overriding consideration of humanity.

Various treaties recognise that humanitarian considerations take priority even in war. For example there is no derogation (putting aside of) the right to life and freedom from torture even in times of war or other emergency, unlike many other human rights where treaties do recognise derogation of other rights in such circumstances.

Def 1.6 The Martens Clause. Part of IHL since 1899, first drafted by a Russian juror at that time and named after him. Basically provides that IHL applies even to technologies invented after any particular treaty. This has proved to be an effective means of addressing the rapid evolution of technology and ensures that new technologies are never outside the scope of the law. They remain under several definite principles, one of which is the dictate of public conscience.

The Martens clause was re-adopted as protocol I to Geneva 1977 -- or rather not so much a re-adoption as taking the principle further.

Judge: Yes, the use of new weapons is not outside the control of international law, that must be right.

Def 2. Legality of Possession and Deployment.

If a given use is unlawful, then any threat of such use is illegal - ICJ 47.

Judge: yes, that's obvious.

Possession may justify an inference of a threat

Judge: this is the critical point, the heart of your argument.

ICJ 48 also useful, bringing possession and deployment into the same ambit as a nuclear war.

The body of IHL circumscribes every use and every threat of use, and therefore the circumstances of possession.

Sometimes a threat can be inferred from the circumstances surrounding possession.

The very essence of deterrence policy is that we have a sufficiently credible 2nd strike capability that it would not be worth your while making a first strike. Even so IHL must circumscribe the way in which a state may strike back in a 2nd strike.

Def 2.3 UN human rights committee

Article 6 of the covenant of human rights defines the right to life. In 1984 the committee said that the design, testing, manufacture of nuclear weapons is one of the most severe threats to the right of life, not just through warfare but also through human or mechanical failure.

It can therefore be argued that not just possession but the mere act of designing a nuclear weapon contravenes the covenant.

Def 2.5 The very nature of nuclear weapons and the profound risks associated with their use are further points to be considered.

Def 3 Are these threats and uses "merely" illegal, or are they criminal as well?

The opinion refers to illegality not criminality, but this merely follows from the way the question was put to the ICJ.

Of course not all breaches of law are crimes, but the nature of these particular weapons means that breaches would also be crimes, chiefly because of the weapons indiscriminate nature.

Def 3.3 Nuremberg Principles.

Recognised by the judgement of that tribunal, unanimously accepted by the UN General Assembly, which by itself is sufficient evidence that they form part of customary IHL.

The Judge pointed out that they remain in operation today, as seem in their use in the trial of war criminals from the former Yugoslavia.

Principle no. 6 deals with crimes against peace, war crimes, and crimes against humanity. Violations of the laws or customs of war. Murder, extermination, [...] against a civilian population.

A violation of IHL in time of war would be warcrime simply because it was a violation of the laws or customs of war.

Among the hallmarks of crimes under IHL are -- universal jurisdiction, so any state can try the allegations -- person who commits such a crime is individually responsible, hence the concept of a war criminal.

Def 3.7 Statutes of the International Criminal Court, even though not yet in force, further endorse the continuing status of the Nuremberg principles.

Turning now to the context of this case.

The defendants claim to have acted, among other reasons, to prevent crime. Reference here to a crime is a reference to a crime under English law, but also to a crime under customary international law.

This follows because UK law is subject to International Law. Its rules and principles are part of customary IHL and as such form part of the common law of England, so must be a crime for the purposes of English law.

Stellan asks: is it correct that the UN General Assembly made the request to the ICJ? Yes

Did it ask its opinion about threats or use? Yes

It did not ask about possession? Correct.

So the reason why we don't find a clear statement about possession is that they were not asked?

Yes, but in the course of the response it does refer to possession.

Stellan asked about he Nuremberg principles. When we acted, is it right that under the Nuremberg principles we are having the right to prevent crimes against humanity?

That is certainly an acceptable understanding of the legal situation.

As a normal citizen could I take it on as an obligation?

Yes. All people who contribute -- maybe by paying taxes -- are contributing to war effort, thereby assuming some responsibility.

In order to decide on possession or deployment is that just a matter of law, or would we need to look at specific information

Yes, and the ICJ did not get any such information from the nuclear weapon states.

So it is a question of evidence, evidence on policies, circumstances and times when used as a threat, forms of evidence and fact, not simply a matter of law.

Stellan referred to Trident's role in UK's defence policy as being a different matter from its role in NATO. Even if we were to accept (which we don't) that nuclear weapons could be used lawfully by the state to defend itself, could they be used to defend another country?

Prof Grief referred to ICJ 97, where it refers to a state's use where "its very survival" was at stake.

So collective defence is illegal?

That is certainly one reading of it.

Judge: if you are right then it must follow that the defence policy of each member of the UN security council is itself unlawful.

Yes.

Judge: then it is remarkable that the ICJ does not say so.

Deterrence must be subject to law, not the other way round, otherwise law is merely what those with power say it is.

Judge: the legality of long usage?

The flaw in that is that is flies in the face of IHL. Secondly it is to form International law on the basis of the practice of a few states, which itself contradicts the idea that all states are equal before international law.