The Outlaw Status of Nuclear Weapons

By Bonnie Urfer, Nukewatch Staff

Sometimes I get arrested opposing nuclear weapons. But the law is perfectly clear - it always has been - regarding what's prohibited in war. Nuclear weapons are monsters of indiscriminate destruction, torture and suffering and they're illegal.

By law, if I see a crime in progress, I'm obligated to do my best to stop it. It could be a burglar emptying my neighbor's house, or it could be a woman and man brandishing weapons, in battle on the street...it doesn't matter. I see the government continuing plans and furthering preparations for nuclear war with a furious willingness and constant readiness. It's illegal.

In 1863, the U.S. issued the first domestic comprehensive code regulating armed conflict in modern times. The "Lieber Code," issued during the U.S. Civil War, was titled "Instructions for the Government of Armies of the United States in the Field." The Lieber Code prohibited destruction of property, robbery, pillage, wounding, maiming or killing of civilians - all under penalty of immediate death if the perpetrator refused to stop. The Lieber Code served as a model for the 1907 Hague Convention IV regulating international conflict.

Codes of ethics existed thousands of years ago to govern the acts of warriors. Those ancient rules remain the foundation of today's law. International and domestic law continues to change and improve, but very slowly. The methods of war on the other hand have changed quickly. High technology provides the means to kill rapidly, easily and indiscriminately.

The Law of Armed Conflict, under which soldiers of today operate, is extremely restrictive and most of the rules are elementary. A few examples include prohibitions against manufacturing or wearing enemy uniforms severe penalties for rape or torture and imprisonment for attacks on civilian property.

There are numerous underlying reasons for codes governing armed conflict. Laws of conflict prevent barbarism, degeneration, savagery and brutality. They retain conditions of humanity for the sick, injured, prisoners of war and civilians. The laws also encompass courtesies, honor and ceremony. It's illegal to use poison or treachery. Rules of war protect both combatants and civilians from unnecessary suffering. Laws of war serve the broader public in the same way traffic laws do. They maintain order, civility and clarity. They are meant to keep all of us noncombatants safe.

When I think about the destructive power of nuclear weapons, there is no doubt in my mind that every aspect of their planning, preparation or use violates - to the root - every law, ethic, code, treaty and convention. They violate the natural law of common sense.

International agreements to which the U.S. is a party include: The Hague Conventions of 1907; the Geneva Protocol of 1925; the Inter-American Treaty of 1935 that protects art, monuments and scientific institutions; the Geneva Conventions of 1949 and the Treaty of Principles governing outer space of 1967. Even if an opponent ignores the laws of armed conflict, it is illegal to wage war indiscriminately.

The International Court of Justice, in its decision of July 8, 1996 says, "From the above mentioned requirements...the threat or use of all 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."

Unfortunately, a controversial and bazaar exception came with the ICJ opinion. It states, "However in view of the current state of international law and of the elements of fact at its disposal the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a state would be at stake."

Since the U.S. will never face an extreme circumstance threatening its very survival, the exception is moot. Besides, the U.S. is bound by more stringent treaties clearly prohibiting the indiscriminate, poisonous and inter-generational effects of nuclear attacks. It should be noted that ten of the Court's 14 judges refused to agree to the above exception, which was imposed by the judges from the nuclear-armed states.

Civil resisters usually enter an anti-war arrest situation only after serious study, rigorous nonviolence training and meetings to carefully plan an action. Further, activists generally participate in extensive legal discussions of the bomb's status in law, court procedures and likely consequences. Friends, supporters, family and legal advisors consider hundreds of questions. Heart and soul are turned inside out looking for the right words and answers. Anti-war acts of conscience are extremely personal and yet could hardly be more publicly scrutinized.

For the past 137 years the U.S. has legislated and participated in perfecting law regarding armed conflict, both domestically and internationally. There is precedent in this nation's actions. The treaties ratified by the U.S. Senate explicitly bind every court in this country. It's constitutional law. Some courts - though rarely - allow international law evidence in trials of disarmament activists. Last year, courts in Scotland and Washington state found anti-Trident activists not guilty of disorderliness and even property destruction - because of the outlaw status of nuclear weapons.

In Kitsap County in Washington, on June 7, 1999, a group of activists with Ground Zero were acquitted of disorderly conduct charges stemming from a blockade at the Bangor Trident submarine base. Judge James Riehl allowed testimony on international law and sent the jury to deliberate with specific instructions including: "You are instructed that as a matter of federal Constitutional law, states are bound to respect the terms of treaties entered into by Congress. Congress alone has the power to abrogate a treaty or impose any additional limitations. Thus to the extent there may be a conflict between a law of the state of Washington, and a right granted or an obligation imposed by a treaty of the U.S. the right granted or the obligation imposed by the treaty will govern."

Another jury instruction in the same case said, "A person acts with 'lawful authority' when he or she acts in reliance upon his or her reasonable interpretation of a relevant state or local ordinance, state or federal statute, treaty, or state or federal court ruling."

The last two court cases involving anti-nuclear activists in Kitsap County ended in acquittals. For a January 15th, Martin Luther King, Jr. Holiday protest - the latest action against nuclear weapons at the Trident base - the county prosecutor has failed to file charges.

Two cases in Great Britain also brought acquittals. On October 21, 1999, Greenock Sheriff ("Judge" in our lingo) Margaret Gimblett found three women not guilty of "malicious damage and theft" after their "tea party" aboard a floating naval laboratory. Defense attorney John Mayer argued that Trident was illegal under international law, and the women were acting to prevent an ongoing crime. The trial lasted 41/2 weeks and the jury heard from international law expert Francis A. Boyle.

"Sheriff" Gimblett found the women had acted without malice or criminal intent. In her view, the illegality of the Trident system under international law justified their action. She directed the jury to acquit on all charges.

We see a pattern: In courtrooms where juries are allowed to hear the facts regarding the bomb, international law and the law of armed conflict, disarmers are declared innocent.

Radical actions are often misunderstood. Beside being the right thing to do, historically civil resistance and disobedience have proven to be successful tactics that have led to increased social justice. Freedom of speech, women's right to vote, the eight-hour workday, the end of slavery and Jim Crow - all came at a heavy cost and against all odds. This history is my basis for hope.

I know why I get arrested standing against nuclear weapons. To do otherwise makes me feel like a criminal.