Nuclear Threat is illegal

The Criminality of Nuclear Deterrence 6/28/01

An Introduction

by Francis Anthony Boyle

With the Reagan administration's ascent to power in 1981, tens of
thousands of American citizens engaged in various forms of nonviolent
civil resistance activities in order to protest against distinct
elements of a U.S. foreign policy that violated basic principles of
international law. These citizen protests led to numerous arrests and
prosecutions by federal, state, and local governmental authorities all
over the country. This author gave advice, counsel and assistance to
individuals and groups who had engaged in acts of nonviolent civil
resistance directed against several aspects of the U.S. government's
foreign policy: the Nuclear Freeze Movement, the Sanctuary Movement,
the Anti-Apartheid Movement, the Plowshares, and the Pledge of
Resistance, among others. I also participated in the defense of
individuals who were not part of formal movements but nevertheless
resorted to nonviolent civil resistance to protest against the U.S.
government's policies on nuclear weapons and nuclear deterrence,
Central America, Southern Africa, and the Middle East.

For example, in the criminal case of People v. Jarka, No. 002170 in the
Circuit Court of Lake County, Waukegan, Illinois, the twenty defendants
were protesting the Reagan administration's offensive strategic nuclear
weapons buildup and U.S. military intervention in Central America
before the Pentagon's Great Lakes Naval Training Center on November 14,
1984. The defendants were over-charged with the fairly serious crimes
of mob action and resisting arrest despite the fact that they had
merely linked arms and sat down in the middle of the road in front of
the military base. After a three-and-one-half-day courtroom trial in
which defense attorneys produced eight expert witnesses (including this
author) on nuclear weapons, Central America, and international law, the
defendants were acquitted of all charges on April 15, 1985. The Jarka
defendants were acquitted by invoking the traditional common law
defense known as "necessity," which was incorporated into the Illinois
Criminal Code. According to Chapter 38, =A7 7-13 of the Illinois Revised
Statutes (1983), conduct which would otherwise be an offense is
justifiable by reason of "necessity" if the accused was without blame
in occasioning or developing the situation and reasonably believed such
conduct was necessary to avoid a public or private injury greater than
the injury which might reasonably result from his or her own conduct.
In Jarka the greater public and private injury with respect to Central
America was successfully argued to be crimes against peace, crimes
against humanity, war crimes, grave breaches of the Geneva Conventions,
as well as violations of the U.N. Charter, of the O.A.S. Charter, and
of the International Court of Justice's 1984 interim Order of
Protection on behalf of Nicaragua, which the Reagan administration had
perpetrated on a daily basis. To the best of my knowledge, Jarka was
only the second case in the United States where civil resisters against
the Reagan administration's contra terror war in Nicaragua were
acquitted. But the Jarka case constituted an even more significant
precedent for the defense of anti-nuclear protesters by using
international law. For the first time ever in the annals of American
jurisprudence, the judge in the Jarka case actually instructed the jury
that the threat and use of nuclear weapons violated international law
and thus were criminal. To quote the exact language of this
pathbreaking instruction that was given to the Jarka jury by Judge
Alphonse F. Witt: "The use or threat of use of nuclear weapons is a war
crime or an attempted war crime because such use would violate
international law by causing unnecessary suffering, failing to
distinguish between combatants and noncombatants and poisoning its
targets by radiation."1 In other words, nuclear deterrence itself
(i.e., "threat of use of nuclear weapons") was criminal under basic
principles of international law.

The stunning victory in Jarka was immediately used as a precedent for
establishing the defendants' right to the necessity defense with
respect to international law in Chicago v. Streeter, No. 85-108644,
Circuit Court of Cook County, Chicago, Illinois, whose criminal trial
was held approximately one month later. In the Streeter case, the nine
defendants attempted to meet with the South African Consul at his
office in Chicago to discuss that country's criminal policy of
apartheid. When he refused to do so, the defendants refused to leave
the corridors of a building outside the Consulate offices, and were
eventually arrested and prosecuted for violating a provision of the
City of Chicago Municipal Code prohibiting "unlawful trespass." To
substantiate their defense of necessity, the Streeter defense attorney
team presented at trial several expert witnesses who testified to the
effect that the government of South Africa had been committing
international crimes by pursuing its policies of apartheid and that the
defendants acted reasonably in their efforts to prevent the
continuation of these crimes.2 Once again, in this case too, the jury
acquitted the defendants of all charges brought against them. To the
best of my knowledge, Streeter was the first outright acquittal for a
pure anti-apartheid protest case in the United States. We even made the
New York Times! As a direct result of the Jarka and Streeter acquittals
with their attendant news media publicity, numerous attempts were made
around the entire country by defense attorneys seeking to invoke these
two cases as precedents for the defense of other individuals who had
engaged in acts of nonviolent civil resistance protesting against the
Reagan administration's illegal policies toward Nicaragua and El
Salvador, against South African apartheid, and of course against the
Reagan administration's offensive strategic nuclear weapons buildup as
well as against nuclear weapons and nuclear deterrence in general.
There then occurred many such nonviolent civil resistance cases in
which criminal charges were dismissed, or else the defendants
acquitted, because of Jarka-type defenses founded upon principles of
international law.3 During the past two decades of my defending these
cases, there have transpired monumental changes in world politics that
are too complicated to analyze here. Most notable, however, were the
collapse of the Warsaw Pact and the disintegration of the Soviet Union,
leaving the United States as the only self-proclaimed nuclear
superpower in the world--the "hyper-power." Needless to say, however,
de jure apartheid has been dismantled in South Africa. The much
vilified African National Congress has come to power there. And Nelson
Mandela became the celebrated President of the Republic of South
Africa. Fortunately, there is no further need to defend people involved
in peaceful nonviolent protests against the criminal South African
apartheid regime. The same holds true for direct United States military
intervention into Grenada, Nicaragua, Guatemala, Honduras, El Salvador,
Costa Rica, etc. At least for the time being, the U.S. wars against the
Peoples of Nicaragua, El Salvador, Honduras and Guatemala have been
wound down. The Sanctuary Movement has basically disappeared. To be
sure, in 1989 the Bush administration invaded Panama in a last-ditch
attempt to hold onto a U.S. presence in the Panama Canal.4 Then in 1994
the Clinton administration invaded Haiti in order to maintain U.S.
hegemonic domination over the Caribbean Basin and for domestic
political reasons. And the United States government is still engaged in
various types of overt and covert interventions into the domestic
affairs of Latin American states under the pretext of waging its
fictitious and fatuous war against drugs5--especially now in Colombia.
At least for the time being, however, there are no longer large numbers
of people all over the United States protesting against direct U.S.
military intervention into Latin America. To be sure, quite recently
many people have been arrested, prosecuted and sent to jail for
peaceful nonviolent protests designed to shut down the U.S. Army's
so-called School of the Americas at Fort Benning, Georgia that has
trained many of the military dictators who have plagued our sister
Latin American Republics for decades.6 And there is still the U.S.
colony in Puerto Rico and the ongoing protests against the U.S. Navy's
bombing campaign at Vieques.

But nuclear weapons are still with us! Every year there are still
thousands of people in the United States and around the world who
engage in peaceful nonviolent protests against nuclear weapons and
nuclear deterrence. As documented in the seminal monthly newsletter
Nuclear Resister, every year hundreds of these anti-nuclear resisters
are arrested and prosecuted for their principled opposition to weapons
of mass extermination whose destructive power far exceeds even the
wildest fantasies of Hitler. It is for this reason, then, that I have
decided to produce this book that will concentrate exclusively on the
principles of international law relevant to nuclear weapons and nuclear
deterrence. I have included several pieces that I have written on
various problems of nuclear deterrence and international law that have
arisen during the past five decades of humankind's nuclear era--from
the U.S. atomic bombings of Hiroshima and Nagasaki in 1945 through the
1996 World Court Advisory Opinion on the Legality of the Threat or Use
of Nuclear Weapons, to our stunning victory over the U.K. Trident 2
nuclear weapons system at Greenock, Scotland in late 1999, and beyond.
By collecting these writings here, it is my hope to provide the reader
with a fairly comprehensive analysis of the numerous and complex legal
issues related to nuclear weapons and nuclear deterrence in one volume.
Their basic argument is that nuclear weapons and nuclear deterrence are
criminal under well-recognized principles of international law. First,
I have included my study The Lessons of Hiroshima and Nagasaki, that
was originally published in my book The Future of International Law and
American Foreign Policy, =A9 Copyright 1989 by Transnational Publishers,
Inc. I would like to thank Heike Fenton, President of Transnational
Publishers, Inc., for permission to reprint this chapter here. As
conclusively established therein, the atomic bombings of Hiroshima and
Nagasaki were heinous war crimes in gross violation of well-recognized
principles of international law that had been fully subscribed to by
the United States government as of August 1945. In other words, the
nuclear age itself was conceived in the original sins of Hiroshima and
Nagasaki. Humankind still anxiously waits for an apology, repentance,
and atonement by the United States. For the sake of completeness, the
historical research set forth here should now be supplemented by Gar
Alperovitz's The Decision to Use the Atomic Bomb (1995), which
discussed my study at pages 529-30. Next, I thought it would be
important to include some materials dealing with the historical
development of the so-called nuclear arms control process between the
United States and the former Soviet Union, the successor-in-law to
which the United States now considers to be the Russian Federation. In
this regard I have reprinted a paper I delivered on Nuclear Weapons and
International Law: The Arms Control Dimension before the 21st Senior
Conference convened at the United States Military Academy at West Point
in 1983 on the general subject of Nuclear Deterrence. This Senior
Conference was precipitated by the Reagan Administration's promulgation
of a new "protracted nuclear war-fighting" doctrine that was
implemented by means of a massive build-up of U.S. offensive
first-strike strategic nuclear weapons systems, against which the Jarka
defendants would soon protest. My West Point presentation was
originally intended to serve as a lawyer's response to this criminal
folly. Nevertheless, this paper was indeed published by the United
States Military Academy in The Nuclear Debate: 21st Senior Conference
Proceedings (West Point: 1983), and later in Volume 4 of the New York
Law School Journal of International and Comparative Law, No. 2 (1983).
At this 21st Senior Conference my co-panelists for the afternoon
session on "Nuclear Weapons and International Law" were Professor
Alfred P. Rubin of the Fletcher School of Law and Diplomacy and
Professor Harry Almond of the Pentagon's National War College. Our
paper presentations were followed by a lengthy and vigorous debate with
the conference participants, who consisted of about 200 current and
former high-level U.S. military officers and civilian government
officials actually involved in supervising American nuclear weapons and
nuclear deterrence policies, including the three-star General in charge
of war-operations at the Pentagon, the Director of the Defense Nuclear
Agency, the U.S. Air Force's Special Assistant for Nuclear Targeting,
Brent Scowcroft, George Ball, Richard Garwin, etc. During this extended
debate, I energetically argued with all the participants about why and
how international law was indeed relevant to U.S. nuclear deterrence
policies.

This West Point Senior Conference debate is where I first formally
articulated my basic proposition that nuclear weapons and nuclear
deterrence are criminal under well-recognized principles of
international law. My remarks during this debate drew heavily upon my
then ongoing study The Relevance of International Law to the Paradox of
Nuclear Deterrence, which is reprinted here from my Defending Civil
Resistance Under International Law (1987). This article analyzes the
entire history of U.S. nuclear deterrence theories and practices in
order to reach that conclusion. This analysis still holds up today.
Despite the end of the Cold War, nothing has changed about U.S. nuclear
"deterrence" strategy: It still calls for launching an offensive
first-strike with strategic and tactical nuclear weapons systems
against any adversary. Both at the time and in retrospect, my West
Point Senior Conference appearance, paper, presentation, and debate on
Nuclear Deterrence made me feel like the biblical Daniel going into the
proverbial lion's den at Babylon.7 But at a cocktail party reception
that evening, a one-star General on the U.S. START I Delegation for the
Reagan administration specifically came over to tell me somewhat
apologetically: "Professor Boyle, I want to assure you that we here in
the military take the Geneva Conventions and the Hague Regulations
quite seriously!" And well the Pentagon should since the laws of war
and international humanitarian law were originally designed to protect
soldiers and sailors in combat. In order to continue the nuclear arms
control saga up to these START I negotiations that were initiated by
the Reagan administration, I have included my study Star Wars vs.
International Law: The Force Will be Against Us!, that was originally
published in The Future of International Law and American Foreign
Policy, =A9Copyright 1989 by Transnational Publishers, Inc. Once again,
I would like to thank Heike Fenton, President of Transnational
Publishers, Inc. for permission to reprint this chapter here. I include
these two chapters on nuclear arms control negotiations in order to
substantiate my basic thesis that nuclear arms control and reduction
agreements are essentially a fraud that has been perpetrated upon the
Peoples of the world by all the nuclear weapons states: Lulling people
into a false sense of security, and thus deflecting and dissipating
substantial public pressure for real nuclear disarmament. Generally
speaking, these agreements have permitted their respective nuclear
weapons states parties to phase out their obsolete nuclear weapons
systems while at the same time replacing them with more advanced,
sophisticated, threatening, destabilizing, dangerous, and destructive
nuclear weapons systems. The 1996 Comprehensive Nuclear Test-Ban Treaty
(CTBT) is no exception to this general rule. Thereunder, the then five
acknowledged nuclear weapons states (U.S., U.K., Britain, France,
China) locked in their nuclear monopoly and nuclear superiority over
the rest of the non-nuclear signatory states in the world. While at the
same time, these Nuclear Five Great Powers were enabled to continue the
research, design, virtual testing, production and deployment of the
next generation of nuclear weapons and their related delivery systems
by means of their preponderant control over high technology: advanced
nuclear accelerators, high-energy lasers, super-computers,
hydrodynamics, nuclear fusion, etc. In the United States this next
stage of the strategic nuclear arms race is currently being conducted
under the euphemism of the so-called Stockpile Stewardship and
Management Program.8 And there are national equivalents in these other
nuclear weapons states as well. This gross hypocrisy on the CTBT by the
Nuclear Five Great Powers contributed directly to the nuclear weapons
explosions by India and Pakistan in the spring of 1998. Despite these
self-styled nuclear arms control and reduction agreements, the United
States, Russia, Britain, France and China have all violated and today
still stand in gross violation of their solemn commitments made in
article VI of the 1968 Treaty on the Non-Proliferation of Nuclear
Weapons (NPT):

Each of the Parties to the Treaty undertakes to pursue negotiations in
good faith on effective measures relating to cessation of the nuclear
arms race at an early date and to nuclear disarmament, and on a treaty
on general and complete disarmament under strict and effective
international control. Since 1968 not one of these nuclear weapons
states has taken seriously its treaty obligations to negotiate in good
faith toward the goal of achieving nuclear disarmament, let alone
general and complete disarmament.9 The only exception might conceivably
have been the denuclearization proposal tendered by then Soviet leader
Mikhail Gorbachev to then American President Ronald Reagan at their
summit meeting in Reykjavik, Iceland in November of 1986.10 Gorbachev's
stunning proposal ultimately came to naught because of Reagan's myopic
fixation on his so-called Strategic Defense Initiative (SDI), publicly
identified with the moniker "Star Wars." In any event, today all of
these Nuclear Five Great Powers stand in material breach of the NPT.11
Their longstanding, collective, and illegal recalcitrance on these
solemn NPT requirements directly contributed to the nuclear weapons
explosions by India and Pakistan in the spring of 1998. Even worse yet,
in November of 1997 the Clinton administration promulgated a new
nuclear war-fighting doctrine that was specifically targeted against
so-called "rogue states" in the Third World by means of adopting
Presidential Decision Directive (PDD) 60.12 The primary legal problem
with this new doctrine is that it blatantly violates the self-styled
"negative security assurances" given by the United States, inter alia,
as an express condition for the renewal and indefinite extension of the
Nuclear Non-Proliferation Treaty (NPT) by all of its non-nuclear
weapons states parties in 1995. According to the relevant part of this
U=2ES. Declaration that was approved in U.N. Security Council Resolution
984 (11 April 1995):13 The United States reaffirms that it will not use
nuclear weapons against non-nuclear-weapon States Parties to the Treaty
on the Non-Proliferation of Nuclear Weapons except in the case of an
invasion or any other attack on the United States, its territories, its
armed forces or other troops, its allies, or on a State towards which
it has a security commitment, carried out or sustained by such a
non-nuclear-weapon State in association or alliance with a
nuclear-weapon State. Not surprisingly, PDD 60 has been implemented by
means of a large-scale and expensive "improvement" of offensive U.S.
nuclear weapons systems.14 This new Clinton nuclear war-fighting
doctrine and its related nuclear weapons systems contradict and
severely undermine the entire NPT Regime as well as the CTBT Regime. To
be sure, there very well might be some relatively tiny "rogue states"
lurking out there somewhere in the Third World.15 But today the United
States government has become the sole "rogue elephant" of contemporary
international law and politics. In this regard, U.N. Security Council
Resolution 984 (11 April 1995) explicitly referred to the U.S.
Declaration as "security assurances," and the U.S. government
officially both referred to and entitled its Declaration as "security
assurances." Therefore, because the Clinton administration violated its
own solemn "security assurances," PDD60 constitutes an ongoing
Nuremberg Crime against Peace. Article 6 of the Nuremberg Charter
states in relevant part as follows:16 .... The following acts, or any
of them, are crimes coming within the jurisdiction of the Tribunal for
which there shall be individual responsibility: (a) Crimes against
peace: namely, planning, preparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements
or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing; ... Leaders, organizers,
instigators and accomplices participating in the formulation or
execution of a common plan or conspiracy to commit any of the foregoing
crimes are responsible for all acts performed by any persons in
execution of such plan. [Emphasis added.]

To the same effect is the sixth principle of the Principles of
International Law Recognized in the Charter of the Nuremberg Tribunal
and in the Judgment of the Tribunal, which were adopted by the
International Law Commission of the United Nations in 1950:17 PRINCIPLE
VI The crimes hereinafter set out are punishable as crimes under
international law: (a) Crimes against peace: (i) Planning, preparation,
initiation or waging of a war of aggression or a war in violation of
international treaties, agreements or assurances; (ii) Participation in
a common plan or conspiracy for the accomplishment of any of the acts
mentioned under (i). ... [Emphasis added.] Notice that both of these
elemental sources of public international law clearly provide that the
"planning" or "preparation" of a war in violation of international
"assurances" such as the aforementioned U.S. negative security
assurance constitutes a Nuremberg Crime against Peace. Such is PDD60!
Despite rumors to the contrary, the sons and daughters of Reagan's Star
Wars are still alive and well today. The "leadership" of the Republican
party in the U.S. Congress are still pushing for the development,
testing, and deployment of high-tech anti-ballistic missile systems
that would clearly violate the terms of the 1972 U.S.-U.S.S.R.
Anti-Ballistic Missiles Systems (ABM) Treaty. It is the opinion of this
author that the Pentagon has already been developing a prohibited
nation-wide ABM System under the guise of deploying an extensive
network of so-called "Theater Wide" anti-missile interceptors, some of
which are based upon Star Wars technology.18 Then in January of 1999,
the Clinton administration publicly importuned Russia to amend the ABM
Treaty out of significant existence upon pain of its outright
abrogation by the United States. It appeared that then Russian
President Boris Yeltsin might go along with this insidious and
retrograde overture. Hence, the analysis of the ABM Treaty set forth in
this study shall remain relevant to the public debate over its
continued utility for quite some time.19 With the collapse of the
Soviet Union and the impoverishment of Russia leaving the United States
as the world's "only superpower" or "hyperpower," we are getting to the
point, if we are not there already, where only the United States has
the capability to launch an offensive first-strike strategic nuclear
weapons attack upon any adversary. For that precise reason, deploying
the so-called "national missile defense" (NMD) has become a critical
objective of the United States government. NMD is not really needed to
shoot down a stray missile from some so-called "rogue state." Rather
U=2ES. NMD is essential for mopping up any residual Russian or Chinese
strategic nuclear weapons that might survive a U.S. offensive
first-strike with strategic and tactical nuclear weapons systems.
Hence, both the Clinton administration and now the Bush administration
have been moving to circumvent, undermine, or abrogate the ABM Treaty
in order to deploy NMD. The successful deployment of NMD will finally
provide the United States with what it has always sought: the capacity
to launch a successful offensive first strike strategic nuclear attack
coupled with the capability to neutralize a Russian and/or Chinese
retaliatory attack. At that point, the United States will proceed to
use this capability to enforce its Will upon the rest of the world.
Strategic nuclear thinkers such as Harvard's Thomas Schelling call this
doctrine "compellance" as opposed to "deterrence." With NMD the world
will be dominated by a U.S. "compellance" strategy. From that demented
perspective of global hegemony, it came as no surprise that the then
Republican-controlled U.S. Senate rejected the ratification of the
Comprehensive Test Ban Treaty on October 13, 1999. In addition to the
ABM Treaty, current United States military activities in outer space
also contravene the core commitments set forth in articles I and III of
the 1967 Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, the so-called Outer Space Treaty, to which the United
States is a contracting party:

Article I The exploration and use of outer space, including the moon
and other celestial bodies, shall be carried out for the benefit and
the interests of all countries, irrespective of their degree of
economic or scientific development, and shall be the province of all
mankind. ... Article III States Parties to the Treaty shall carry on
activities in the exploration and use of outer space, including the
moon and other celestial bodies, in accordance with international law,
including the Charter of the United Nations, in the interest of
maintaining international peace and security and promoting
international co-operation and understanding. Despite these provisions
of the Outer Space Treaty, inter alia, the United States Air Force has
proclaimed its intention to become the "Master of Space" and has
established a special U.S. Space Command headquartered at Colorado
Springs for the express purpose of obtaining U.S. military domination
of outer space.20 So much for outer space becoming the common heritage
of humankind! The United States is currently striving mightily to
defeat the very Object and Purpose of the Outer Space Treaty. The basic
thrust of my analysis set forth in The Relevance of International Law
to the Paradox of Nuclear Deterrence was further developed, elaborated
and refined in a paper entitled The Criminality of Nuclear Weapons,
which is included here.21 This paper was originally delivered as the
invited Keynote Address before an International Colloquium sponsored by
the International Association of Lawyers Against Nuclear Arms (IALANA)
that was held in Berlin in November of 1990. This paper was later
published by the Nuclear Age Peace Foundation in 1991 as Booklet No. 27
in its Waging Peace Series, with a gracious Introduction by its
President, Mr. David Krieger. This IALANA conference took place in
Berlin shortly after the fall of the Berlin Wall and the reunification
of Germany. Yet, most remarkably, in a public speech given in immediate
reaction to my Keynote Address before the IALANA conference, a German
Brigadier General working for the German Ministry of Defense on nuclear
issues informed all the participants that the Nuremberg Charter,
Judgment and Principles were nothing more than "soft law". Apparently,
the good German General had forgotten all about the German Nazi war
criminals who had been executed on the basis of the Nuremberg Charter
and Judgment. When I attempted to discuss these matters with him that
evening at a reception, the good German General curtly informed me that
when it comes to nuclear weapons and nuclear deterrence policies, the
German government must "trust" the American government to do the right
thing. The blind shall lead the blind! One generation ago the peoples
of the world asked themselves: Where were the "good" Germans? Well,
there were some good Germans. The Lutheran theologian and pastor
Dietrich Bonhoeffer was the foremost example of someone who led a life
of principled opposition to the Nazi/terror state even unto death.22
Today, the peoples of the world are likewise asking themselves: Where
are the "good" Americans? Well, there are some good Americans. They are
getting arrested and going to jail for protesting against United States
nuclear weapons facilities and nuclear deterrence policies. Today, the
anti-nuclear resisters of the Plowshares Movement follow in the
hallowed footsteps of Dietrich Bonhoeffer in their principled
opposition to the U.S. nuclear/terror state.23 As a tribute to these
anti-nuclear Plowshares resisters, I have decided to include in this
book actual testimony I gave in the prosecution for two counts of
sabotage of Mr. George Ostensen by the State of Wisconsin for a
Plowshares Action directed against the ELF/Trident 2 Nuclear Weapons
Facility near Ashland, Wisconsin. At the beginning of this chapter,
entitled Putting Trident 2 on Trial, you will find a brief introduction
by Mr. Ostensen's Attorney-of-Record, Ms. Susan Hedman, explaining the
facts of the case. The transcript itself has been edited for style,
length, typographical errors, etc. Nevertheless, it should provide the
reader with a pretty good blow-by-blow account of what actually
happened in the courtroom when we put on trial the Trident 2 Nuclear
Weapons System as criminal under well-recognized principles of
international law.

In the Ostensen trial, we argued the basic working proposition of the
Plowshares Movement that nuclear weapons as well as their related
components and delivery systems are not really "property." In a typical
first year course on Property taught at an American law school,
property would be defined as "a bundle of rights protected by law." By
contrast, nuclear weapons, their components, and delivery systems are
nothing more than instruments of international criminal activity that
are condemned, repudiated, and prohibited by international law,
including and especially by the Nuremberg Charter, the Nuremberg
Judgment, and the Nuremberg Principles. Today we would not recognize a
property right to a gas chamber at Auschwitz! Surely, if during the
Nazi era any German citizen had possessed the courage and audacity to
disable a gas chamber at Auschwitz, today we would all agree that
person was a hero and blameless even if he or she had been found guilty
of the crime of "sabotage" or "destruction of government property"
under Nazi law administered by a Nazi judge in a Nazi courtroom. During
the past two decades of defending these anti-nuclear cases, I have been
continually reminded of this analogy every time I defended an
anti-nuclear resister from prosecution under U.S. Federal law
administered by a U.S. Federal judge in a U.S. Federal district court.
What is the difference? Well, in Nazi Germany the anti-Holocaust
resister undoubtedly would have been executed. Whereas here in the
United States of America--"...the land of the free, and the home of the
brave"--the anti-nuclear-Holocaust resister would probably be sentenced
to spend about five years in a U.S. Federal penitentiary. To the best
of my knowledge, Ostensen was only the second U.S. case in which anyone
has been able to obtain an outright acquittal on one count of sabotage
for a Plowshares Action directed against an American nuclear weapons
facility. It was a unique achievement for everyone involved in this
case, and a tribute to the courage and fortitude of George Ostensen.
Therefore, I have included the transcript of my testimony here in order
to provide the reader with the basic idea of how we obtained this
remarkable result by exposing the criminality of Trident 2 to the judge
and the jury. Over the years, I have used this Ostensen transcript to
help defend many Plowshares anti-nuclear resisters from some pretty
serious criminal charges (e.g., felonious depredation of government
property, felonious destruction of government property, sabotage). This
track record includes obtaining two more outright acquittals on charges
of "sabotage" for another Plowshares Action directed against the exact
same ELF/Trident 2 facility in Wisconsin a decade later by Tom and
Donna Howard-Hastings.24 In this case, despite gross interference by
the judge--who had been Ostensen's prosecutor--we were able to convince
the jury that the ELF/Trident 2 System was an offensive first-strike
strategic nuclear weapons system that was criminal under
well-recognized principles of international law. The arguments and
transcript originally developed in the Ostensen case were later used as
the blueprint for obtaining the October 21, 1999 directed verdict of
acquittal by a Scottish Sheriff (i.e., judge) in favor of three Trident
Plowshares 2000 anti-nuclear resisters at Greenock, Scotland on four
charges each for criminal damage to Britain's Trident 2 nuclear weapons
facility.25 This spectacular victory over Trident 2 was a much-needed
fillip to the worldwide anti-nuclear movement coming almost right after
the U.S. Senate had rejected ratification of the Comprehensive Test Ban
Treaty on October 13, 1999. But despite these and other anti-nuclear
victories in U.S. and U.K. courts, most unfortunately, the Trident 2
Nuclear Weapons System deployed by the United States, and proliferated
to and deployed by Britain, will bedevil all of humankind well into the
21st century. Next, comes my so far unpublished study entitled The
Criminality of Nuclear Deterrence that sets forth my current
reflections on the dilemma of nuclear extermination that confronts
humankind today as we enter upon the next millennium of our parlous
existence.26 Here, I have analyzed in detail the 1996 Advisory Opinion
by the International Court of Justice on the Legality of the Threat or
Use of Nuclear Weapons.27 I have also offered some suggestions about
how this World Court Advisory Opinion can be used to defend
anti-nuclear resisters by using international law.

This analysis has already been put to good use in the defense of the
Gods of Metal (GOM) Plowshares. Here five Plowshares resisters disarmed
a nuclear capable B-52 bomber at a Pentagon "open-house" held at
Andrews Air Force Base on May 17, 1998. They were charged by the United
States government with petty "depredation of government property."
Their bench trial took place on September 21-23, 1998 at the Federal
District Court in Greenbelt, Maryland. The fact that the United States
government did not seek to indict the GOM Plowshares for felonious
depredation of government property was a victory for the defendants and
international law from the very outset of the prosecution. Usually, the
U=2ES. government indicts Plowshares anti-nuclear resisters for a variety
of felonies where the punishment could be anywhere from 2 to about 20
years in prison. However, when the U.S. government has charged
Plowshares anti-nuclear resisters with petty offenses instead of
felonies, it is because it fears that the international law arguments
will get to a jury and produce an outright acquittal. Although charging
for a petty offense can shorten the potential prison sentence to six
months, it also deprives the defendants of a jury trial in a U.S.
Federal court. Generally speaking, in the United States a criminal
defendant has a constitutional right to trial by jury if she or he
faces imprisonment for more than six months.28 Several years before the
GOM Plowshares case, we beat out Federal counts of felonious
depredation of U.S. government property for a Plowshares Action
directed against a Minuteman III nuclear weapons facility for precisely
these reasons. After reviewing the documents we filed in court,
apparently the U.S. government feared that the presentation of the
international law arguments before the jury would convince the jurors
to acquit these Minuteman III Plowshares resisters. So it dropped the
felony counts and fell back on simple trespass, thus subjecting the
defendants to a bench trial before a U.S. Federal Magistrate without
the benefit of a jury. Despite our best efforts, these Minuteman III
Plowshares resisters were summarily "convicted" of trespass by the U.S.
Federal Magistrate. But six months in a U.S. Federal prison is a lot
better than two years! As is typical in these Plowshares cases, the
Federal District Judge in Maryland illegally stripped the Gods of Metal
Plowshares defendants of all witnesses willing to testify on their
behalf except this author. I was then qualified as an expert on
international law, criminal law, and nuclear weapons. I spent 2 =BD
hours testifying on the witness stand under oath and subject to
cross-examination to the effect that the B-52 bomber is an offensive
first-strike strategic nuclear weapons system that is criminal under
international law and, in particular, under the World Court's Advisory
Opinion on the threat and use of nuclear weapons. A condensed version
of this chapter was formally offered into evidence by the Gods of Metal
Plowshares (who courageously and quite competently defended themselves
in court), and accepted into evidence by the Federal District Judge.29
I was then subjected to a cross-examination on my analysis of the World
Court's Advisory Opinion by the Assistant U.S. Attorney prosecuting the
case. Not surprisingly under these circumstances, the Federal District
Judge convicted the Gods of Metal Plowshares. Nevertheless, the GOM
Plowshares Action became the very first case where the World Court
Advisory Opinion was fully argued in any United States court.30 As
documented by the Nuclear Resister, the 1996 World Court Advisory
Opinion has already ushered in a new era of highly intensified struggle
against nuclear weapons and nuclear deterrence by the peoples of the
world, and especially by those citizens living in the nuclear weapons
states. Furthermore, in its 1996 Advisory Opinion the International
Court of Justice elucidated the basic principles of international
environmental law applicable to nuclear weapons. Today, there are large
numbers of people all over the world who are protesting against nuclear
weapons, nuclear experiments, nuclear energy, nuclear power plants,
nuclear powered satellites, and nuclear waste, etc. because of
nuclearism's devastating impact upon humanity's global environment.
These are critical concerns shared by anti-nuclear resisters who
protest on grounds of international law with anti-nuclear resisters who
protest on grounds of damage to the environment. I have worked on both
types of cases over the years, and occasionally both groups of
anti-nuclear resisters do intersect and mutually support each other.

For example, in the Fall of 1997 we built an international coalition of
both types of anti-nuclear resisters--spearheaded by the worldwide
Green Party--in an unsuccessful effort to stop N.A.S.A.'s launch of the
plutonium-powered Cassini spacecraft on the grounds that this
threatened a Crime against All Humanity. But it seems to me that a lot
more work needs to be done on building a broad-based coalition between
these two groups of anti-nuclear resisters around the world. It is
toward fostering this objective that I have deemed it worthwhile to
contribute this book at this distressing moment in time.31 The
concluding chapter deals with the Bush administration's suicidal
embrace of nuclear nihilism. F.A.B. 13 July 2001

Notes: Those interested in the footnoted documentation should contact:

Francis A. Boyle

Law Building

504 E. Pennsylvania Ave.

Champaign, IL 61820 USA 217-333-7954

(voice) 217-244-1478

http://www.mothersalert.org/boyle2.html