IN THE WESTMINSTER MAGISTRATES’ COURT
IN THE MATTER OF THE LAYING OF AN INFORMATION
THE SECRETARYOFSTATE FORDEFENCE
ADVICE (PART II)
As to the domestic criminality of the use of certain weapons
RobertL.Manson LLB (Hons)Lon
Assistant totheLay informant
Subtitle : Jumping Legal Hurdles and Undermining Procedural Fences
•Military Advantage versus Civilian Harm 23
“Military advantage” is distinct and distinguishable 55
from “Military necessity”.
The adjectives “concrete and direct” having been added 76
to “overall military advantage” must be given a particular effect.
“Political Objectives” or “Strategic Purposes” are different 86
and distinguishable from strict “Military advantage”.
•Primary Prosecutorial Posture 128
•Conspiracy and Conditional conspiracy are criminalised10
Conspiracy is separately criminalised under the Act1410
Conspiracies are criminal even though contemplating 1912
only conditional circumstances
•The Mental Element of the Crime requires “knowledge” 16
as well as “intent”.
How high is the order of “knowledge” which has to be proved ?2416
•Evidence of preparatory measures & targeting plans20
the importance of evidence relating to 3421
contingency target planning
Medical, Structural and Environmental Effects Evidence.3722
Contingency Targeting : Options & Scenarios3923
•The “Moscow Criterion” 4426
•‘Load-out’ per SSBN Boat5030
•Non-application of the “Prerogative/Crown Immunity”5432
or “Prohibited Subject Area” doctrines.
1)Having now set out in Part I of this Advice earlier,the relevant legal history on the development of that aspect of International Humanitarian Law, which deals with and discloses the crime of “launching a disproportionate attack”, and then also covering the legislative history of itssubsequent incorporation into domestic English criminal statute; I now continue in this second part, by dealing with the various aspects of both the law on elements of crime, practical evidentiary principles and on various constitutional principles, which it is foreseen will become engaged in practice by the pursuit of a practical prosecution with respect to the same.
Military Advantage versus Civilian Harm
I begin with the questions as follows:
- Legal significance of the expression “concrete and direct overall military advantage anticipated”- to be judged as a question of fact and not law.
- Non application of expression to strategic or political advantage instead – but limitation to strict military objectives alone.
2)Once again I choose to begin with a quotation from the relevant section of the “Official Commentary” of the ICRC (the “International Committee of the Red Cross”) in relation to, in this instance, from that part of Article 51 of the First Additional Protocol to the Geneva Conventions (1977), “Protection of civilian population” – sub- paragraph 5(b) and which is the acknowledged progenitor of Article 8.2(b)(iv) of the Rome Statute.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary - Protection of the civilian population
“§ 1976. The ' second type of attack ' envisaged in paragraph 5 includes those which have excessive effects in relation to the concrete and direct military advantage anticipated. Once again there were long discussions in the Diplomatic Conference and it was difficult to come to an agreement. The formula that was adopted is very similar to that proposed by the ICRC. (31) It is based on the wording of Article 57 [ Link ] ' (Precautions in attack) ' relating to precautionary measures. Committee III had suggested either a straightforward reference to Article 57 [ Link ] ' (Precautions in attack) ' or reproducing the formula used in that article. Finally, the Drafting Committee, which was requested to resolve the question, opted for the second solution. Thus reference may be made to Article 57 [ Link ] ' (Precautions in attack) ' for further details.
. . . .
§ 1979. Comments were also made in various quarters that paragraph 5(b) authorized any type of attack, provided that this did not result in losses or damage which were excessive in relation to the military advantage anticipated. This theory is manifestly incorrect. In order to comply with the conditions, the attack must be directed against a military objective with means which are not disproportionate in relation to the objective, but are suited to destroying only that objective, and the effects of the attacks must be limited in the way required by the Protocol; ' moreover, ' even after those conditions are fulfilled, the incidental civilian losses [p.626] and damages must not be excessive. Of course, the disproportion between losses and damages caused and the military advantages anticipated raises a delicate problem; in some situations there will be no room for doubt, while in other situations there may be reason for hesitation. In such situations the interests of the civilian population should prevail, as stated above.”
3)However, this is not to suggest for a moment that there is universal consensus on the inevitably controversial issue as to where to draw the correct balance as between what are in reality always competing considerations – namely “military advantage” versus “excessive civilian harm”. In reality, and I imagine not in the least surprisingly, this continues to be an ongoing subject of disputation, disagreement and general discourse as between, on the one hand, those who favour greater discretion being placed in the hands of military commanders in the field, faced with the realities of the battlefield including the notorious “fog of war” issues, as against on the other hand, those who seek the broadest possible practicable protection for non-combatant civilians, the innocent and defenceless victims of International armed conflict.
4)There is, however, now I think a certain emergent consensus surrounding certain aspects or elements of the test, which it is important to state and bear in mind. They would certainly include, but are not necessarily limited to, the following aspects:
“Military advantage” is distinct and distinguishable from “Military necessity”.
5)Especially, in the sense that in the latter instance there may well often be a minimal position or strategy which, in the military view, must be pursued in order to achieve a particular military objective. For example, where military advice maintains it is “necessary” to remove all opposing military forces from a particular location, such as a town or village, when it both blocks any advance of friendly forces through the area and commands fire power over the area of such a potential advance. The removal of such enemy forces may well then be a “military necessity” as a prerequisite to the advance of friendly forces. However, the “military advantage” which is attained or brought about by achieving that said “military necessity”, may well need to be assessed independently in terms of a wider “overall” military objective in pursuing or making such an advance in forcesper se. For example – it may well prove possible to achieve those “wider military objectives” by means of bypassing this particular battlefield entirely, and instead advancing elsewhere, or alternately byforcing the withdrawal of the occupying opposing forces by other military means. In such circumstances, it is consideration of the wider “military advantage” as a whole, which is relevant to the balancing test here in issue, and not just the claims to immediate “military necessity”, as determined by reference to a particular existing balance of forces, present in a particular location and at a particular time.
6)In this regard, it is I suggest particularly worth noting, that when the Crown signed the First Additional Protocol (1977) to the Geneva Conventions (1949), in its Declaration of Ratifiation, it stated as follows:
"e) In relation to paragraph 5(b) of Article 51 and paragraph (2)(a)(iii) of Article 57, that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack;
which is a position, I would suggest, wholly consonant with this distinction which I am making as between “military necessity” and “military advantage”, though that may well not have been the intention !
The adjectives “concrete and direct” having been added to “overall military advantage”
must be given a particular effect.
7)The “effect” referred to is perhaps little other than comes from the application of the natural and ordinary meaning of the words used, but nonetheless it’s worth stating for all that. Namely, advantages that are wholly, or indeed partially, “speculative” – as in “hoped-for”, “ideal” or “optimal” are not applicable by reference to the need for outcomes to be “concrete” instead. Equally, advantageous outcomes that are “indirect”, “incidental” or “secondary”, by the same logic, are not applicable by reference to the need for them to be “direct”. In particular, it follows that any advantage which was unforeseen or not planned in the planning and preparation stage, cannot be relied upon in relation to any subsequent justification for the degree of “overall military advantage” in the event attained .
“Political Objectives”or “Strategic Purposes” are different and distinguishable
from strict “military advantage”.
8)The body of International Humanitarian Law (“IHL”) as deals with international armed conflict, known for short as the “laws of war”, are strictly divided by jurisprudence into two separate and distinct parts. The laws which apply to the resort to the use of armed force in the first place, known as the “jus ad bello”; and then those which apply instead to the conduct of the armed conflict once it has started, known as the “jus in bellum”. The law on “proportionality” in the course of an armed attack is, naturally enough, an example of the latter, and therefore under the applicable principles of international law jurisprudence, the definition has to be limited in relation only to elements which pertain and are contingent upon the “conduct” element, and not otherwise. It follows that matters which go beyond the limits of simple war fighting conduct, and stray instead into areas such as the broader political objectives and/or national strategic purposes and interests etc., are outside of the ambit or jurisdiction covered by the application of this part of IHL. The following passage perhaps encapsulates the concept equally as well, as follows:
“The law of conduct in war (IHL) is separate from the law governing resort to force. It follows that the only legitimate goal in war is to defeat the enemy militarily. Correspondingly IHL does not allow conduct in war to be directly linked to the ultimate political goal of an armed campaign. As a result, the positive side of a proportionality calculus cannot be constructed in terms of its ultimate strategic or political objective, for example to overthrow an illegitimate regime, but only to the proximate end of achieving a military advantage. “.
9)It follows that, and in this instance I suggest most crucially, considerations going to questions of the likes of “how to win the war”, “how to preserve our national existence” and in particular “how to retaliate with sufficient force so as to deter further escalation” are all matters going to broader strategic and political concerns, well outside of and beyond the scope for application of the term mere “military advantage”, and therefore outside of and beyond consideration for justification within the application of that term when used as here in the definition of a crime.
10)However, beyond the helpful guidance which can be attained from these rather limited considerations, in the end the decision in practice as to where the point of balance liesin any particular instance, is really “a question of fact” for the judges of fact to decide in each individual case. So where, as here, we have in contemplation the prosecution and trial of an indictable only offence under statute, that means in this country a Crown Court jury, duly empanelled and sitting as what was once referred to famously as “a little Parliament”.
11)That said it can only be helpful to know how oft repeated, by the State officials of the Crown to those in Parliament proper Assembled and elsewhere, has been the mantra that Her Majesty’s Government both acknowledges and implements this particular rule of law itself, and indeed admonishes and implores others to do so likewise. To that end I have attached hereto a statement (Appendix 01) setting out some several instances of the same.
Primary Prosecutorial Posture.
12)Having now just set out the relevant law, specifically concerning the legal definition of the expression “military advantage” as restricted in its use to connectionwith only “war fighting” or “armed conduct” senses, and thereby excluding “political objectives” and/or “strategic purposes” instead, it then becomes most advantageous to now set out my primary prosecutorial posture. That is to say, the principal way in which I say this law should be applied to the facts of the theory of the crime in the current instance, in this case of course especially with respect to the application of that element of the crime described by the words“… clearly excessive in relation to the direct and overall military advantage anticipated”. I fully predict that this will be regarded as clearly the most conceptually complicated, but also technically vital, aspect of the prosecution theory of the crime to present – especially so here where these words are to be applied not in relation to the facts of an actual event, which has already taken place in the past, but rather in relation to a conspiracy to pursue a course of conduct in the future, and what is more only to so pursue it in certain conditional circumstance.
13)It will be the primary prosecution contention that, any actual future use of the UK Trident Nuclear Weapons system would represent the accomplishment of at best a “strategic” and/or “political” action or aim, rather than any actual “military” or “war fighting” operation. To this purpose I rely principally on the stated policy position or posture as currently stated by the Government itself. Let us contemplate the following statements, per
(a) in July 2013 the Government produced a paper setting out a formal review of Alternative weapon systems to the straightforward so-called “like-for-like” replacement of the current Trident SLBM system. This was at the behest of the Lib-Dem element of the ‘government coalition’, who were firmly politically opposed to that “replacement” policy. However, the document also affords a particularly helpful insight into the Government’s stated position with respect to the purpose it sees as fulfilled by the British Nuclear Deterrent, which would be required of whichever particular future system was chosen.For instance, at §5, p.3 says:
“The UK‟s deterrent was assumed to remain a political tool of last resort rather than a war fighting capability “
Then again at §1.3 on p.13 it says:
“The fundamental and enduring premise is that the UK deterrent will remain a political tool of last resort rather than a war fighting capability; its use is only to be considered in the most extreme circumstances. “
(b) the following year (2014) saw the House of Commons Defence Select Committee conduct an enquiry into “Deterrence in the twenty-first Century”. The written evidence submittedby the Ministry of Defence to the Committee provides an even more detailed insight into the Government’s continuing position with respect to this particular issue. For instance, at §3, p.1
“ Ultimately, deterrence and coercion are about conditioning or changing the perceptions of a potential opponent in order to influence or persuade them. They are different from war-fighting, which involves the actual use of physical force to degrade or destroy the capabilities of an adversary to the point where they are unable or unwilling to continue resistance. If force is used in support of coercion or deterrence, it is used in a limited way in order to demonstrate resolve and to establish the credibility of determination and ability to resort to more extreme measures if necessary. Of course, either the threat or the use of force can only be employed in circumstances where there is a sound legal basis.”
(emphasis added )
Then again at §8, pp.1-2 it says:
“The UK views its nuclear weapons as political not military or war fighting weapons. Nuclear weapons are therefore just one element of the total capability to maintain/achieve the deterrent effect the UK seeks.”
Perhaps the position is most succinctly stated in an editorial context by Prof Tim Hare, Director of the Royal United Services Institute (USI) in their Journal, as follows:
“the UK does not possess nuclear weapons as part of the military inventory, they have no function as war-fighting weapons, or to achieve military objectives”
14) "Deterrence" whilst being a political standpoint or position , refers to a situation in which the weapon system concerned is not actually used – in the sense of being used in the course of an armed conflict – to put it plainly it is not fired off ! Whereas, the kind of "political use" to
which I here make reference, is in relation to an actual hostile useof the weapons concerned – to put it plainly the kind of use in which thousands and maybe millions of non-combatant civilian citizens would die .What is being said, both by me but also quoting the Government’s own sources above, is that even such a use asthat is not regarded as a "military" or "war fighting" use, especiallyin any strict or legal sense of those terms . Rather, even though used “in anger” against political and even military command and control centres,
but resulting in the death of millions of people, the Government states that it stillviews such a use as that as "strategic" or "political", designed to coerceor bring about a political or strategic response from the opponent – typically a ceasefire and/or preventing a specific launchingof a nuclear attack or further nuclear attack against the UnitedKingdom,threatening our survival.In short, the Government acknowledges that Trident is principally, ifnot entirely, a "political or strategic" weapon, even when it is used. Itacknowledges that it is not a part of the UK military or war fighting arsenal. The result of this means that if such a "political" weapon wereto be used, not in the sense of a simple deterrent non-use – but rather
in the sense of an actual hostile use – the user is incapable of thensubsequently arguing any justification based upon the "military advantageanticipated" – for the simple reason that he is on record as havingstated in advance that it is not a military weapon from whose use hewould seek any military advantage,but rather a political one fromwhichinstead he seeks a coercive or strategic advantage.