PART I : Provenance, codiification, incorporation & application of the
Principle of proportionality
What is the character & provenance of the underlying or basic offence ?
- The underlying or basic offence is best described by the epithet the ‘launching of a disproportionate attack’, and is defined as comprising in a breach of a fundamental principle of the international humanitarian laws governing the conduct of armed conflict (jus in bellum), namely the principle of ‘proportionality’ .
- Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘The Basic Offence which includes among other matters references to the codification of the customary law principle within the First Additional Protocol to the Geneva Conventions on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977) and the subsequent incorporation of the same into our domestic statute law, by means of the Geneva Conventions (Amendment) Act 1995.
Do the provisions of the Additional Protocol I of 1977 apply to nuclear weapons ?
- This aspect considers as a preliminary matter the position of the application of the ‘principle of proportionality’ to the use of nuclear weapons, as an aspect of international humanitarian law. Exposition of basic argument in relation to this matter is set out in the attached statement labelleddoc-002-application-of-codified-principle-to-nuclear-weapons : Application to Nuclear Weapons’.
- In doing so, I cite and quote from the Official extensively from the
Commentary of the International Committee of the Red Cross, regarding its own analysis of the conduct of the CDDH Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Conférence diplomatique sur la réaffirmation et le développement du droit international humanitaire applicable dans les conflits armés), 1974-1977. Followed, by an examination of the relevant aspects of the the judgement of the International Court of Justice (ICJ), in relation to this topic when in 1996 it gave its notorious Advisory Opinion on the “Legality of the threat or use of nuclear weapons“a1-appendix-01 Advisory Opinion of 8 July 1996 – General List No. 95 (1995-1998) .
Does the incorporated domestic crime also so apply ?
- This aspect considers next whether or not the incorporated domestic crime, as disclosed by the 1995 Act, follows the example of the ICJ Advisory Opinion and is equally applicable to international armed conflict conducted by or with the use of nuclear weapons as with other weapons. Candidly, the conclusion is reached that it does not, there being specific provision made in s.7(3) of that Act, whereby full effect is given to the ‘nuclear weapons exemption’ reservation, attached by the Crown’s to its subsequent Instrument of Ratification regarding the 1977 First Additional Protocol.
- Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-003-application-to-domestic-statute.
Were similar reservations permitted to the Rome Statute provisions?
- This aspect considers next the development of the Rome Statute for the Establishment of an International Criminal Court, done at Rome in 1998, and in particular, the provisions made therein in relation to the ability or not of States Parties to enter reservations upon their ratification. It is followed by an exposition of the relevant UK instruments of ratification and domestic statutory instrument in relation thereto. Exposition of basic argument in relation to this matter is set out in the attached statement labelled ’doc-004-reservations-about-the-rome-statute Reservations about the Rome Statute’.
Does the 1997 nuclear weapons reservation apply also to the 2001 Act ?
- This aspect finally considers the effect of the corresponding statutory provisions [s.50(4)] in the 2001 Act, and whether or not they have a similar effect on the application of that Act to the use of nuclear weapons, as in relation to the case with respect to the provisions of the earlier Act of 1995. The conclusion is reached, however, that the answer to this question depends upon the view taken by a Court as to whether or not any of the ratification declarations and reservations, specified by the Crown in statutory instruments, are relevant to the specific articles of the Rome Statute 1998.
- Finally, it is further concluded that the effects of the 1997 nuclear weapons exemption reservation to the First Additional Protocol to the Geneva Conventions, is simply not relevant to the application of the specific articles of the Rome Statute in question instead, principally given that upon its ratification of that Statute, the Crown fully recognised the express prohibition within it against making such reservations.
- Additionally, further analysis is then offered with respect to both the relevant ‘state practice’ and ‘opino juris’ on the topic of the application of the relevant principles of customary international law and the principle of proportionality, to the use of nuclear weapons, a matter expressly alluded to by the Crown in its declaration of ratification of the Rome Statute, the effect of which is to find resoundingly that both aspects favour their unconditional and unqualified application.
- Exposition of basic argument in relation to this matter is set out in the attached statement labelled ’doc-005-does-the-2001-act-apply-to-nuclear-weapons: Does the 1997 nuclear weapons reservation apply also to the 2001 Act ?’
PART II : Application of Relevant Principles of Criminal, Evidentiary
& Constitutional Law
International criminal law principle of ‘proportionality’
- The first aspect of the present matter, dealt with in the second part, concerns the adopted customs and conventions regarding the balance of considerations which must be undertaken, as between ‘military advantage’ anticipated on the one part and ‘civilian harm’ predicted on the other, when determining whether a particular proposed use of armed force in a situation of international conflict is ‘excessive’.
- In particular, emphasis is directed at the distinction as between the use of methods and weapons of warfare which have a genuine military or war fighting purpose, as compared with those which are declared to fulfil a political and/or strategic purpose instead, and the importance of that in relation to the determination of the test of so-called ‘military necessity’. Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-006-military-advantage-versus-civilian-harm : Military Advantage versus Civilian Harm’ , and a further appendix attached thereto (a1-appendix-01) setting out previous examples of HMG’s declared acknowledgement of and commitment to the principle of ‘proportionality’ as a general rule of international humanitarian law applicable to and in international armed conflict.
Prosecution Posture regarding application of principle
- Next, I set out my position in relation to the application of the facts of the current matter, as applied to the above disclosed law on the definition and application of the international law principle of proportionality. I reach the conclusion that, as a matter of evidence basing myself almost entirely upon the declared policy position of Her Majesty’s Government in relation to its own understanding of the exclusively strategic and political purposes filled by the strategic nuclear weapons system in question, it follows inexorably that, there being no military or war fighting purpose for the use of the weapon, any and all civilian death, harm to civilians and civilian objects, and long-term persistent damage to the natural environment caused by such use, must inevitably then be ‘excessive’ in relation to the non-existence of any military or war fighting purpose thereby not achieved.
- Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-007-application-of-principle-of-proportionality : Application of ‘principle of proportionality’
Conspiracy, Conditional Conspiracy & Extra-territoriality
- Next, I set out my position in relation to certain important domestic criminal law aspects of the case; firstly, the issue of the provisions of the 2001 Act in relation to the crime of conspiracy to commit a war crime and also its provisions respecting extra-territoriality of such a criminal conspiracy.
- Then I move on to consider the issue of the conditional nature of the agreement, that is to say the plans which the evidence shall show have been created, with respect to the agreed potential possible future use of the weapon system in question; and the applicable law, principally based on precedent case law authority on the criminality of such conditional conspiracy.
- Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-008-criminality-of-conspiracy-conditional-conspiracy-under-the-act Criminality of Conspiracy & Conditional Conspiracy under the Act’ .
The Mental Element of the Crime requires “knowledge” as well as “intent”.
- Next, I moved to dealing with the issues regarding the law on the applicable ‘mental element’ of the crime in question. In particular, appreciating that as well as requiring a culpable perpetrator to possess the requisite subjective intent, also dealing with the issue as to his objective ‘knowledge’ of the facts concerning the appreciable circumstances in which, and predictable consequences of, the attack which he proposes to launch.
- I deal as appropriate and necessary with the interpretive language in both the international and the domestic statute, and also the interpretive assistance provided by means of the Art.9 elements of crimes materials, appearing in relation to this particular crime, again as that is disclosed both in international and domestic materials. Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-009-the-mental-element-of-the-crime : The Mental Element of the Crime’.
Evidence of harmful effects to civilians, infrastructure & the environment.
- Next, having dealt substantially with the relevant aspects of criminal law, both under international rules and domestic statute, I then move on to set out my position in relation to the evidentiary issues. In particular, I begin with presenting the basis for the need to address evidence of the enormous, widespread and persistent harmful and damaging effects upon civilians, civilian objects and infrastructure and the natural environment, in relation to in particular the potential possible option to target certain crucial strategic, political and military locations in and about the city and oblast of Moscow. Evidentiary justification for treating this as the principal focus of prosecution posture is dealt with in the next exceeding segment.
- References are made to expert evidence reports provided by no less than three eminent British experts in the field, setting out primarily in appended exhibits evidence in relation to the scale, effect and persistence of the harm and damage to such civilians, civilian infrastructure objects and the natural environment, consequent upon such an attack. Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-010-evidence-of-harmful-health-effects-consequences:Evidence of harmful health effects and consequences etc.’
What is the ‘Moscow Criterion’ and how do I prove it ?
- Next, I move on to deal with the published evidence in the public domain which establishes both the existence and the basic nature of the so-called ‘Moscow Criteriion’ and which is used to form the basic allegation for the formulation of an agreement to launch an attack against targets in and about the city and oblast of Moscow, and thereby commit the war crime alleged.
- In addition to setting out various published works, I also quote from the speeches of ministers and other prominent politicians and civil servants all of whom have acknowledged and referenced the plan. In addition, by way of a further appendix (a2-appendix-02-v-2 detailed targeting locations are set out together with the strategic, command, political, military and intelligence functions and roles they fulfil. From a position of an abundance of caution, I conclude with a referencing of the expert witness reports, corroborating and endorsing this appreciation of HMG’s past and present nuclear targeting strategy from three eminent British experts in political science pertaining to this aspect of national defence policy.
- Finally, a summation is provided, basing myself entirely on publicly available and published materials, stipulating as to the current specifications and details both as to the missiles themselves and HMG’s stated position as to the current number of missiles, number of warheads and type and configuration of warheads as carried by each of the current four Trident boats. Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-011-the-moscow-criterion: The Moscow Criterion’
Non-application of the “Prerogative/Crown Immunity” or
“Prohibited Subject Area” doctrines.
- In conclusion, and having now dealt with the principal criminal law and evidentiary issues I perceive as being raised, I finally move to touch upon the non application of certain constitutional law doctrines, as arising under common law and established on the authorities, from which the Crown enjoys much of its privilege, immunity and indeed impunity, most especially in relation to policy areas pertaining to the ’disposition and armament of the Armed Forces’ and the‘requirements for national security’.
- In so doing I deal both with questions as to ‘prohibited subject areas’ doctrines developed in particular in relation to the jurisdiction for the exercise of judicial review in the courts; and also in relation to the application of the doctrine of so-called ‘Crown immunity’ in relation to the provision of statutes. Exposition of basic argument in relation to this matter is set out in the attached statement labelled ‘doc-012-non-application-of-crown-immunity-prohibited-subject-areas-common-law-doctrines: Non-application of the “Prerogative/Crown Immunity” or
“Prohibited Subject Area” doctrines”.
Robert L. Manson
for and on behalf of
INLAP (Institute for Law, Accountability and Peace).
Fiat iustitia ruat cœlum