IN THE WESTMINSTER MAGISTRATES’ COURT IN THE MATTER OF THE LAYING OF AN INFORMATION

BETWEEN

ANGELA ZELTERInformant

AND

THE SECRETARY OF STATE FOR DEFENCE

Accused

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

ADVICE (PART I)

As to the domestic criminality of the use of certain weapons

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

Robert L. Manson LLB (Hons) Lon (Ven. Cambs.)

r_ma n s o n @ s k y.com 01239 615921

Assis t a n t t o t h e Lay informant (Legal ma t t ers)

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Subtitle

Lies, damned lies & ratification declarations

Contents Para. Page

A Brief History of the Development of the International Crime. 2 3

The First Additional Protocol to the Geneva Conventions (1977) 7 6

Do the provisions of the Additional Protocol I of 1977 apply to 13 9nuclear weapons ?

Upon ratifying the First Additional Protocol 1977 in 1998 did the 18 14Crown honour the then current international consensus and ICJ advisory opinion on its scope ?

The Rome Statute for the Establishment of an International 22 16Criminal Court

When ratifying the Rome Statute for the ICC and when 27 18implementing it domestically did the Crown respect the bar on reservations ?

Conclusions. 41 24

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1. I am asked to offer an Advice with respect to certain matters that are raised in relation to

the liability of certain Crown servants to answer in a criminal jurisdiction to a charge that,

whilst in pursuit of the well-known British government policy of a so-called independent

nuclear deterrence, those particular persons even though acting within office and indeed

on the authority of the Crown, including especially even Ministers of the Crown, are

thereby guilty of committing an offence under international humanitarian law, which has

been incorporated within United Kingdom criminal statute, and which therefore

constitutes an offence under our internal or domestic criminal law as well.

A Brief History of the Development of the International Crime.

2. The offence under international humanitarian law, a component both of normative

customary international legal principles as well as having been codified into certain

international treaty law provisions to which the UK is a state party, is best described by

the epithet “launching a disproportionate attack”. ‘Disproportionate’ in this sense

meaning excessively harmful to civilians and civilian objects and/or the natural

environment relative to the military advantage thereby gained. A typical definition of the

customary norm would be as follows:

“ Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, and/or widespread, long-term and severe damage to the natural environment ; which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. “1

3. The prohibition on the means of conducting warfare and the use of weapons in the

course of such conduct, whereby protected categories of non-combatant persons, 1 as to which for example see at Rule 14. Proportionality in Attack International Committee of the Red Cross [ICRC] : Customary International Humanitarian Law database - edited by Jean-Marie Henckaerts (ICRC) and Louise Doswald-Beck (International Commission of Jurists)http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14#Fn_10_1

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namely most especially of course civilians, those engaged in health care and the care of

the wounded, as well those who have either formally surrendered or are incapable any

longer of constituting combatants due to wounds et cetera, known by the epithet “hors

de combat “, are caused to thereby suffer unnecessarily or excessively ; has undoubtedly

formed an important aspect of the customary international norms on the laws of war

relevant to the conduct of armed conflict, what is known technically as the “ius in bello “,

for many centuries.

4. Perhaps the best-known formal example of its early codification into treaty law occurred

in 1907, with respect to the fourth Hague Convention on the laws and customs of war on

land, as follows:

“ Convention (IV) respecting the Laws and Customs of War on Land The Hague, 18 October 1907.

ANNEX TO THE CONVENTIONREGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LANDSECTION I : ON BELLIGERENTS …

Art. 22. The right of belligerents to adopt means of injuring the enemy is not unlimited.

Art. 23. In addition to the prohibitions provided by special Conventions, it is especiallyforbidden

(a) To employ poison or poisoned weapons;(b) To kill or wound treacherously individuals belonging to the hostile nation or army;(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;(d) To declare that no quarter will be given;(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering; “

(emphasis added)

5. As well as setting down specific provisions in relation to the conduct of armed conflict the

Hague conventions are renowned also for the following paragraphs contained in the

common opening preamble , and which deliberately set out to state the agreed position

or principle with respect to means or methods of warfare that were in development or

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even not as then yet foreseen. This is known as the “de Martens “ clause after its original

French author, as follows:

“ According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.

It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice; On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. “

(emphasis added)

6. In particular, as of the end of the 20th century, a large number of military manuals lay

down the principle of proportionality in attack as comprising a recognised fundamental

norm of customary law principles.2 Numerous States have adopted legislation making it

an offence to carry out an attack which violates the principle of proportionality.3

The First Additional Protocol to Geneva Conventions (1977)

2 See, e.g., the military manuals of Australia (ibid., § 14), Belgium (ibid., § 15), Benin (ibid.,§ 16), Cameroon (ibid., § 17), Canada (ibid., §§ 18–19), Colombia (ibid., § 20), Croatia (ibid.,§ 21), Ecuador (ibid., § 22), France (ibid., §§ 23–24), Germany (ibid., §§ 25–26), Hungary (ibid.,§ 27), Indonesia (ibid., § 28), Israel (ibid., §§ 29–30), Kenya (ibid., § 31), Madagascar (ibid., § 32), Netherlands (ibid., § 33), New Zealand (ibid., § 34), Nigeria (ibid., §§ 35–36), Philippines (ibid., § 37), South Africa (ibid., § 38), Spain (ibid., § 39), Sweden (ibid., § 40), Switzerland (ibid., § 41), Togo (ibid., § 42), United Kingdom (ibid., § 43) and United States (ibid., §§ 44–48).

3 See, e.g., the legislation of Armenia (ibid., § 50), Australia (ibid., §§ 51–52), Belarus (ibid., § 53), Belgium (ibid., § 54), Canada (ibid., §§ 57–58), Colombia (ibid., § 59), Congo (ibid., § 60), Cook Islands (ibid., § 61), Cyprus (ibid., § 62), Georgia (ibid., § 64), Germany (ibid., § 65), Ireland (ibid., § 66), Mali (ibid., § 68), Netherlands (ibid., § 69), New Zealand (ibid., §§ 70–71), Niger (ibid., § 73), Norway (ibid., § 74), Spain (ibid., § 75), Sweden (ibid., § 76), United Kingdom (ibid., §§ 78–79) and Zimbabwe (ibid., § 80); see also the draft legislation of Argentina (ibid., § 49), Burundi (ibid., § 56), El Salvador (ibid., § 63), Lebanon (ibid., § 67), Nicaragua (ibid., § 72) and Trinidad and Tobago (ibid., § 77).

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7. Of course, perhaps best known of the international treaty series dealing with the laws of

war are the so-called Geneva Conventions, most especially those promulgated after an

international conference hosted by the International Committee of the Red Cross

(“ICRC”) in Geneva in 1949. However, alas, primarily due to concerns held by the Great

Powers in the immediate aftermath of the recent war ravages of the Second World War

further progress on codification of this aspect of the ius in bello proved to be too

controversial for further agreement at this time. Accordingly, it was not until nearly three

decades later, in the period 1974 -1977 at the occasion of the further ICRC conferences

on the need for additional protocols to the original Geneva conventions, that necessary

international agreement and concurrence on further codification was attained.

8. In particular, it was the following provisions as set forth in Part IV of the First Additional

Protocol, and dealing with the protection of civilian populations, wherein the codification

of the ‘principle of proportionality ‘reached its current zenith, as follows:

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.

Part IV : Civilian population #Section I -- General protection against effects of hostilities

Protection of the civilian populationArticle 51-- Protection of the civilian population

1. The civilian population and individual civilians shall enjoy generalprotection against dangers arising from military operations. To give effectto this protection, the following rules, which are additional to otherapplicable rules of international law, shall be observed in all circumstances.…..

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannotbe directed at a specific military objective; or

(c) those which employ a method or means of combat the effects of

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which cannot be limited as required by this Protocol; and consequently,in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

5. Among others, the following types of attacks are to be consideredas indiscriminate:

(a) an attack by bombardment by any methods or means whichtreats as a single military objective a number of clearly separatedand distinct military objectives located in a city, town, village orother area containing a similar concentration of civilians or civilianobjects; and

(b) an attack which may be expected to cause incidental loss of civilianlife, injury to civilians, damage to civilian objects, or a combinationthereof, which would be excessive in relation to the concreteand direct military advantage anticipated.

…..

Article 55 — Protection of the natural environment

1. Care shall be taken in warfare to protect the natural environment againstwidespread, long-term and severe damage. This protection includes aprohibition of the use of methods or means of warfare which are intended ormay be expected to cause such damage to the natural environment and therebyto prejudice the health or survival of the population. “

(emphases added)

9. The Crown on behalf of the United Kingdom acceded to the original four Geneva

conventions by signing in the usual fashion at the cessation of the international

conference on 12 August 1949. However, it was not until UK incorporating legislation was

finally promulgated and put on our statute book some eight years later in 1957, that the

Crown by convention was then willing to ratify the said four Conventions by declaration

dated 23 September 1957. The statute in question being titled simply the Geneva

Conventions Act 1957, under the provisions of section 1 of which it became an indictable

offence for “any person, whatever his nationality, who, whether in or outside the United

Kingdom, to commit, or to aid, abet or procure the commission by any other person a

grave breach of any of the four Conventions“, the full text of which were set out in the

schedules to that Act.

10. This in fact is a quite remarkable and nearly unique extension to the usual limits of

criminal jurisdiction applicable to UK statutes which create domestic criminal offences, in

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the sense that whilst many such offences owing their existence to the incorporation of

international law crimes will be applicable to conduct committed abroad, as in out with

the United Kingdom its colonies and dominions, what is referred to technically as “ extra-

territoriality “, that extension is typically then limited so as to apply only to UK nationals,

residents or service personnel and their dependents. This section is the unusual example

of a jurisdictional provision which applies without limitation as to nationality or location

of the crime, and thus may fairly be described as an example of so-called “ universal

jurisdiction “.

11. When it came to the accession to and ratification of the additional protocols of 1977, this

once again was acceded to by the Crown on behalf of our country by signing it at the

conclusion of the international conference, or at least very shortly thereafter, on 12

December 1977. However, once again there was yet a further very long period of delay

before the Crown felt able to ratify that accession, of a little more than a further full two

decades this time, until 28 January 1998. Once again, by convention it was necessary to

await the promulgation and passing of incorporating legislation which did not finally

come into effect until 20 January 1998, although made by an amending Act dating from

19 July 1995.

12. The Act in question being titled again simply Geneva Conventions (Amendment) Act

1995, and which has had the effect of now incorporating the grave breaches provisions in

relation to the two additional protocols also into the s.1 provisions of the earlier Act of

1957. In this context, it is important to note that technically whilst the launching of a

disproportionate attack, contrary to article 51 (5)(b) is not a grave breach per se;

nonetheless, launching an indiscriminate attack affecting civilians or civilian objects in

such said manner, as identically defined in the precautionary measures provisions at

article 57(2) (a) (iii), is - as to which see article 85(3) (b).

Do the provisions of the Additional Protocol I of 1977 apply to nuclear weapons ?

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13. And so we come to what one might describe as our first truly ‘thorny’ issue. It is not as if

the topic was not foreseen, indeed regarded by many as something of “ the elephant in

the room “, at the time of the international diplomatic conference itself. As to a brief

recapitulation of the relevant setting I think I can do little better than to refer the reader

to the official commentary provided by the ICRC on the adoption of the additional

protocols dated 1987, itself in relation to this very matter.

“ 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.ICRC Commentary Part IV : Civilian population #Section I -- General protection against effects of hostilities.4

….1838 Before going on to study the articles which comprise this Section, it is appropriate to reflect for a moment on the question of nuclear weapons.

1839 The question had already been raised in 1949, but the Diplomatic Conference, presented with a proposal by the USSR delegation meant in particular to outlaw nuclear weapons, declared that it had no authority to deal with this, and the draft resolution was declared inadmissible by a large majority. ….

1843 In the introduction to the Commentary on the Draft Protocol the ICRC, explaining its position, stated that it had not included in its drafts, apart from some general provisions, a regulation of atomic, bacteriological and chemical weapons. These general provisions are those which already existed in a codified form or as customary law and which were confirmed in the Protocols. They consist mainly of the provisions of Article 33 of the Draft, the present paragraphs 1 and 2 of Article 35 ' (Basic rules) ' (dealing respectively with the fact that the right to choose methods and means of warfare is not unlimited, and with superfluous injury or unnecessary suffering), and the customary rule confirmed by Article 43 of the Draft, now Article 48 of the present Protocol ' (Basic rule) ' (dealing with general protection of the civilian population, distinction between the civilian population and civilian objects, on the one hand, and combatants and military objectives, on the other).

Obviously the Protocol could not restrict the scope of these already existing provisions. Moreover, in 1965, the International Conference of the Red Cross, as we saw above, had declared that "the general principles of the Law of War apply to nuclear and similar weapons". It was also [p.591] in this sense that the ICRC replied to a number of governments which had communicated with it on this matter.1844 During the course of the four sessions of the Diplomatic Conference which produced the Additional Protocols, several delegations expressed their view on nuclear weapons. During the general debate, a series of governments were opposed to the Conference

4 https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?viewComments=LookUpCOMART&documentId=F906C75AE929B32DC12563CD0043434F&action=openDocument

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dealing with specific weapons. Other delegations urged the Conference to broach the question of nuclear weapons and to prohibit their use. Finally, four States urged the Conference not to enter into discussion on nuclear weapons.

1845 The United Kingdom and the United States confirmed their position when signing the Protocols. At the final meetings of the Conference France declared that it did not consider that the rules of the Protocol applied to nuclear weapons. (24)

1846 Finally, when the Conference adopted Article 33 (the present Article 35 -- ' Basic rules ') by consensus, the delegation from India declared that it had joined the consensus because, in its interpretation, the rules contained in this article applied to all categories of weapons -- nuclear, bacteriological, chemical or conventional, or any other categories of arms. ….

1851 Thus, there were no deliberations on the subject of nuclear weapons throughout the Conference, although one might have expected this subject to be broached at least marginally, in view of the positions adopted and the subjects dealt with. What can be deduced from this? There can be no question of a consensus in the current legal sense of the term, since no decision was taken. [p.593] Could it then be considered as a tacit understanding? Legally, silence is difficult to interpret. Was there an agreement outside the Conference between the principal States concerned? This is not the place to answer such question, but it does seem, nevertheless, that none of the States which possess nuclear weapons wished to discuss and examine during this Conference the regulation or the possible limitation of their use.

1852 What can be concluded from all this? In the first place, there is no doubt that during the four sessions of the Conference agreement was reached not to discuss nuclear weapons. Furthermore, there is no doubt that Protocol I of 1977 has not in any way nullified the general rules which apply to all methods and means of combat. As we saw above, these rules are in any case incorporated in the Protocol. These are, first of all, the provisions of the Hague Regulations of 1907, which are a reminder that belligerents do not have an unlimited right to choose the means of injuring the enemy, that it is prohibited to use weapons, projectiles or other devices of a nature to cause superfluous injury and unnecessary suffering.

The Protocol also repeats the customary rule which is at the very basis of the laws and customs of war, i.e., the rule that a distinction shall always be made between combatants and military objectives, on the one hand, and the civilian population and civilian objects, on the other hand. Whatever opinion one may have on the scope of application of Protocol I, these rules remain completely valid and continue to apply to nuclear weapons, as they do to all other weapons. Thus it cannot be argued that by repeating such rules the Protocol excludes nuclear weapons from its scope of application.

1853 The foregoing is in no way contradicted by the declarations made by the United Kingdom and the United States on signing the Protocol on 12 December 1977. The British declaration refers explicitly to ' new ' rules and therefore implicitly confirms that the rules ' reaffirmed ' in the Protocol apply to all arms; and it is in accordance with the British Military Manual. The American declaration is less clear on this point, though it should certainly be interpreted in the same way, as confirmed by the United States Military Manual.

1854 The exact limitations of what is prohibited by international humanitarian law as

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regards the use of nuclear weapons during armed conflict remains to be determined. This question does not really seem to have ever been resolved. ….

1859 As we saw above, no one could take the view that nuclear weapons are "outside" international humanitarian law, i.e., that armed conflicts carried out with conventional weapons are covered by international humanitarian law, while those using nuclear weapons are not. If the principles reaffirmed in the Protocol do not prohibit the use of nuclear weapons during an armed conflict, they nevertheless severely restrict such use. “

(emphases added)

14. As extensive as I have thought it fit to make this quotation from the official ICRC

Commentary , nonetheless, I would still highly recommend the reader using the link at

footnote 4 above to read the entire relevant commentary passage for themselves in

order to better appreciate the full complexities and histories of the matter.

15. That being said, I think it would be fair to say in answer to the question posed at the

outset of this segment that the consensus position at the time of this commentary would

be to the effect that, whilst on the one hand nothing agreed upon or stated in the

Protocol could be said to result in having outlawed or prohibited nuclear weapons, per

se; equally, there was nothing agreed to or stated in the Protocol which could reasonably

suggest that nuclear weapons were somehow or other outside of, or not covered by, the

customary and general laws on the conduct of armed conflict, which it was the very

purpose of the Protocol to codify, including most especially the principle of

proportionality.

16. In my view, matters were however, moved significantly further forward by the judgement

of the International Court of justice (ICJ) when in 1996 it gave its notorious Advisory

Opinion on the “Legality of the threat or use of nuclear weapons“5 Advisory Opinion of 8

July 1996 - General List No. 95 (1995-1998) . It is important to note in this regard that the

opinions of the ICJ, representing as it does the supreme judicial organ of the United

Nations, must rank as constituting a very high order of “opinio juris “, comprising an

5 http://www.icj-cij.org/docket/index.php?p1=3&p2=2&case=95&code=unan&p3=4

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authoritative source on the application of international law, second only to a final

decision of the ICJ in a contentious case. The most relevant parts of the judgement

stating as follows:

“ 84. Nor is there any need for the Court to elaborate on the question of the applicability of Additional Protocol 1 of 1977 to nuclear weapons. It need only observe that while, at the Diplomatic Conference of 1974-1977, there was no substantive debate on the nuclear issue and no specific solution concerning this question was put forward, Additional Protocol 1 in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular, the Court recalls that all States are bound by those rules in Additional Protocol 1 which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol 1. The fact that certain types of weapons were not specifically dealt with by the 1974-1977 conference does not permit the drawing of any legal conclusions relating to the substantive issues which the use of such weapons would raise.

85. Turning now to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons, the Court notes that doubts in this respect have sometimes been voiced on the ground that these principles and rules had evolved prior to the invention of nuclear weapons and that the Conferences of Geneva of 1949 and 1974-1977 which respectively adopted the four Geneva Conventions of 1949 and the two Additional Protocols thereto did not deal with nuclear weapons specifically. Such views, however, are only held by a small minority. In the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons.

86. The Court shares that view. Indeed, nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and 1974-1977 left these weapons aside, and there is a qualitative as well as quantitative difference between nuclear weapons and al1 conventional arms. However. it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings.

On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law :

"In general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other weapons. International humanitarian law has evolved to meet contemporary circumstances, and is not limited in its application to weaponry of an earlier time. The fundamental principles

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of this law endure: to mitigate and circumscribe the cruelty of war for humanitarian reasons."

(New Zealand, Written Statement, p. 15, paras. 63-64.)

None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has been explicitly stated,

"Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons"

(Russian Federation, CR 95129, p. 52);

"So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello"

(United Kingdom,CR 95134, p. 45);

"The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons - just as it governs the use of conventional weapons"

(United States of America, CR 95134,p. 85).

87. Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons. “

(emphases added)

17. Hence, in my respectful submission, one ought now to be able to appreciate why I say

that, certainly by the time the 1995 amending legislation, to update the 1957 Act so as to

now include provision also in relation to the 1977 additional protocols, came into force in

January 1998, it was really in my view by then unarguable but that the grave breaches

provisions of that Protocol I were applicable also in relation to the use of nuclear

weapons in the course of an international armed conflict, if only by reference to the

international opinio juris on the importance and universality of the customary law norms

which underpinned them and from which they were sourced.

Upon ratifying it in 1998 did the Crown honour the then current international consensus

and ICJ advisory opinion on the scope for the first additional protocol 1977?

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18. I assume that the reader will not now be too surprised to learn, that the view taken in

1998 by the Crown on behalf of Her Majesty’s Government for the United Kingdom of

Great Britain and Northern Ireland was not merely of a different character, but moreover

of the diametrically opposed view. It is after all a fully fledged and fully armed nuclear

power, whose long Imperial and indeed somewhat shorter post-imperial international

history has long established its ultimate policy, and in the final analysis, of always giving

priority in its international relations, and in what it perceives to be the defence of its

international interests, to the law of force over the force of law.

19. Even back in December 1977, when the Crown originally acceded to the additional

protocols to the conventions by signature (dated 12 December 1977) it had made a

declaration concurrent there with as follows:"….i) That the new rules introduced by the Protocol are not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons; “6

this was then followed on 28 January 1998, at the time of the lodging of our instrument

of ratification, by the first of the formal reservations attached thereto, stated in the

following terms:

“ (a) It continues to be the understanding of the United Kingdom that the rules introduced by the Protocol apply exclusively to conventional weapons without prejudice to any other rules of international law applicable to other types of weapons. In particular, the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear weapons. “ 7

20. In that context then, not too surprisingly, the precaution was taken of adding a further

amendment to the original 1957 Act , by means of the provisions of the 1995 amending

statute8, a new subsection (3) to section7 thereof, as follows:

6 SOURCE : UNTS, vol.1125, 1979, pp.432-433.7 SOURCE: Corrected Letter of 28 January 1998 sent to the Swiss Government by Christopher Hulse, HM Ambassador of the United Kingdom.as to both of which see also at https://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=0A9E03F0F2EE757CC1256402003FB6D2

8 as to which see at S.4(7) thereof.

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“ (3) If the ratification by the United Kingdom of the first protocol or the second protocol is subject to any reservation or accompanied by a declaration—

(a) Her Majesty may by Order in Council certify that such a reservation or declaration has been made and the terms in, which it was made; and

(b) the protocol shall for the purposes of this Act be construed subject to and in accordance with any reservation or declaration so certified. “

(emphases added)

The final nail in the coffin, as it were, then being achieved by means of an extra-

parliamentary Order in Council, approved on the nod before the Sovereign in Person on

21 July 1998, under the title The Geneva Conventions Act (First Protocol) Order 1998

[1998 No. 1754] the effect of which was simply to recite, in the attached Schedule, the

above quoted nuclear weapons exclusion reservation, as in turn attached to our

Declaration of ratification of 28 January earlier that year.

21. The effect of all of which pomp and circumstance is merely that any attempt to now

invoke the provisions of the 1957 Act in criminal proceedings before the courts of the UK,

in relation to the use of nuclear weapons in the course of an international armed conflict,

would immediately fall foul of this internal amendment to the scope for the application

of the Protocol, specifically designed to exclude its use in such a case. It is well

established on the case law that the UK courts must apply UK law, as they find it to be,

whether they consider it to be consistent with the U.K.’s international treaty obligations

or not. For example, see in the judgement of Diplock LJ (as he then was), in the matter of

Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, at pp.143-144, as follows:

“Where, by a treaty, Her Majesty’s Government undertakes either tointroduce domestic legislation to achieve a specified result in the UnitedKingdom or to secure a specified result which can only be achieved bylegislation, the treaty, since in English law it is not self operating, remainsirrelevant to any issue in the English courts until Her Majesty’s Governmenthas taken steps by way of legislation to fulfil its treaty obligations. Once theGovernment has legislated, ... the court must in the first instance construe thelegislation, for that is what the court has to apply. If the terms of the

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legislation are clear and unambiguous, they must be given effect to, whetheror not they carry out Her Majesty’s treaty obligations, for the sovereignpower of the Queen in Parliament extends to breaking treaties ... , and anyremedy for such a breach of an international obligation lies in a forum otherthan Her Majesty’s own courts “

The Rome Statute for the Establishment of an International Criminal Court.

22. It is one of history’s little ironies that at the very time, in the mid-summer of 1998, as our

Sovereign monarch was giving the Royal nod to the nuclear weapons exclusion

provisions, as dealt with above, her diplomatic emissaries and plenipotentiaries were

assembled in conference in Rome, together with diplomatic missions from around the

World, to contribute to the UN international diplomatic conference upon the

establishment of a new International Criminal Court. Reaching an international

diplomatic consensus on both the definition of, and most importantly the jurisdictional

scope for, the crimes that would be heard and dealt with by the new Court was naturally

at the very core of the issues for debate. Including, foremost amongst these the

definition of “war crimes”.

23. Equally, by now the reader will not be the surprised to learn that among the veritable

herd of elephants in the conference room, the by now long in the tusk one by the name

“what to do about the use of nuclear weapons” was not merely present but trumpeting

its presence loudly throughout the first week. By now the non-nuclear world , foremost

the UN grouping of states called the non-aligned movement (NAM) was fully alert to the

tricks of the P59, and came insisting that the jurisdictional scope for the new Court must

include and encompass specific and named reference also to war crimes as or when

committed by or with the use of nuclear weapons. Whilst the P5 themselves came

insisting contrariwise that they must be allowed, upon ratification of any new treaty, to

once again enter such reservations as they deemed appropriate to their circumstances

and national interests. In the end the diplomatic compromise reached was in effect, on

9 P5 refers to the permanent five members of the UN Security Council, the US, Russia, China, the UK and France, and who are of course all nuclear weapons powers in their own right.

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the one hand, the new treaty Statute would not expressly mention or deal with nuclear

weapons as such or by name; whilst on the other hand, those State Parties willing to

accede to and ratify the new statute, would have to do so without making any

reservations thereto whatever10.

24. Naturally even within the narrow confines of that part of the conference which dealt only

with the topic of the definition and scope for the jurisdiction of the new Court over “war

crimes” stricto sensu, there was in reality much fine detail and compromise to be reached

over all aspects from its placement through to the various applications of general

principles et cetera. However, in the end that part of the Statute which precisely reflects

the ‘principle of proportionality‘ as the gravamen of a specific war crime, both as that had

been previously expressed with regard to civilians and civilian objects in Art. 51 (5)(b) and

with regard to the natural environment in Art. 53(1) of the Additional Protocol I, was now

to be found at Art 8 (2) (b) (iv) as follows:

“Intentionally launching an attack in the knowledge that such attack will causeincidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.

25. And so at last we come to the denouement in this sad tale which perchance has been

rather overlong in the telling. The Crown signed the new treaty, termed the Rome Statute

for the Establishment of an International Criminal Court, on 30 November 1998 within six

months of the close of the conference on 17 July. It did so without making any statement

or declaration accompanying said signature. In keeping with the convention, however,

before ratifying it would have to prepare the necessary implementing legislation.

26. In strict terms the Rome statute does not require State Parties thereto to implement

domestic legislation so as to give full internal effect in their own criminal courts to the

definitions and jurisdiction now afforded to the ICC. However, in consequence of the so-

10 as to which see now article 120 of the Rome Statute.

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called “principle of complementarity”, if a State Party fails to so act it leaves itself open to

the inevitable risk that, if the ICC Prosecutor considers one of its nationals worthy of

prosecution, then that State has no ground to oppose the admissibility of the case for

exercise of jurisdiction by and before the ICC, rather than before its own courts, instead.

Accordingly, the Crown realised that, if it were to ratify the new Statute in order to fulfil

its ambition of being seen to be foremost of the ‘Great Powers’ members of the new ICC

family, it would be necessary for UK implementing legislation to reflect, so far as

necessary to avoid this risk, each and all of the new criminal definitions, including as to

war crimes, that had now been agreed on for the ICC itself. But how to get around the

awkward problem that it could no longer ratify the new Statute, subject to a reservation

specifically excluding its application to nuclear weapons, as had been its previous practice

given that no reservations whatever were now to be allowed ?

When ratifying the Rome Statute for the ICC and when implementing it domestically

did the Crown respect the bar on reservations?

27. The new ICC Act received the Royal assent on 11 May 2001. The new definition of a “war

crime” was precisely as set out in Art.8 (2) (b) of the Rome Statute, and that was given

effect by s. 50 (1) of the Act as that in turn reiterated the Rome Statute definition in

Schedule 8 thereof. However, provision was then made in the following subs. 50 (4), as

follows:

“(4) The articles referred to in subsection (1) shall for the purposes of this Part be construed subject to and in accordance with any relevant reservation or declaration made by the United Kingdom when ratifying any treaty or agreement relevant to the interpretation of those articles. Her Majesty may by Order in Council–

(a) certify that such a reservation or declaration has been made and the terms in which it was made;

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(b) if any such reservation or declaration is withdrawn (in whole or part), certify that fact and revoke or amend any Order in Council containing the terms of that reservation or declaration.”

(emphases added)

Sounds familiar?

28. The Crown lodged our instrument of ratification with the Office of the Secretary-General

to the United Nations on 4 December 2001 and it was indeed accompanied by a

Declaration, the text of the opening paragraph of which is, for convenience, set out at

para.34 below.

29. Just to complete the final two-step shuffle in this particular international version of the

shell game, earlier on 18 July Mr A. K. Galloway, Clerk of the Privy Council, once again

trooped up in front of the Person of our Sovereign Lady and got the Royal nod to the

International Criminal Court Act 2001 (Reservations and Declarations) Order 2001 (No.

2559)11. Most interestingly, however, despite its name this time the Royal Order did not

reiterate the United Kingdom declaration made upon ratification of the Rome Statute for

the ICC itself, but rather they chose to reiterate, in appended schedules, a list of a

further five other sets of reservations and declarations, the very first of which was

naturally, a further iteration of the nuclear weapons exclusion reservations made to the

Geneva Conventions Additional Protocol I of 1977 as made in 1998. So what to make of

this farrago of diplomatic attempts at legislative declarations of the non-reservation of

nuclear weapons exclusions?

30.Subsection 50(4) & including subpara.4(a) of the 2001 Act could have been drafted in the

following terms:

“The articles referred to in subsection (1) shall for the purposes of this Part be construed subject to and in accordance with any reservation or declaration made by the United Kingdom when ratifying any treaty or agreement, which Her Majesty may by Order in Council -

(a) certify has been made and the terms in which it was made : …”

11 http://www.legislation.gov.uk/uksi/2001/2559/contents/made

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Had it been so I contend that its effect would have been pretty much indistinguishable

from that of s.7(3)(b) of the Geneva Conventions Act 1957 (as amended), and as set out

at §20 above. However, it wasn’t. The all important word “relevant” has been inserted

into the sentence before the expression “reservation or declaration made by the United

Kingdom”, and again, a fortiori, the all important conditioning words “relevant to the

interpretation of those articles” have been inserted at the end of the sentence. There is

no use of the word “which” as a co-joining participle or pronoun. Instead, the power

granted to Her Majesty, to be exercised by Order in Council, appears afresh in the next

sentence, and is limited only to the power to certify the making of, and the terms in

which, “such reservations or declarations” were so made.

31. Accordingly, in my submission, this language has the deliberate effect that it reserves to

the Court the obligation to determine (a) whether, and if so which of, those said

“certified” reservations or declarations made by the United Kingdom are in any given

instance “relevant”, and in the second place (b) how they are so relevant, in any given

instance, to “the interpretation of those articles” (meaning thereby the articles referred

to in s.50(1) above).The Court is not required to blindly apply each and every one of the

said reservations or declarations, in each and every instance.

32. In my further submission, in so doing, the Court is bound to adhere to and apply the

common law rule as confirmed by Diplock LJ (as he then was) in Salomon v

Commissioners of Customs and Excise [1967] 2 QB 116, (as above) later at pp.144-145, as

follows: “… But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption.”

(emphasis added)

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33. Considering then first the case of “reservations”, of course, one consideration that might

reasonably be said to arise straight away, is to ask when a diplomatic “declaration” made

upon the ratification of a treaty is also a “reservation”, and when it is merely a

“declaration”. Conventionally speaking, the best source of law on this is the

interpretation section of the Vienna Convention on the Law of Treaties (1969) – article 2

§ 1(d), where it provides as follows:

“d. 'reservation' means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State; “

(emphasis added)

34. It is widely accepted, as a rule of construction of treaties that, in the interpretation of this

interpretation provision, where it says “in the application to that State” the exclusion or

modification thereby affected need not be exclusive to that State, as in be expressly

directed as being applicable to that State alone, so long as it has the effect of excluding or

modifying certain of the treaty provisions “in relation to that State”. In other words, the

declaration that

“ It continues to be the understanding of the United Kingdom that …, the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear weapons. “ 12

it is reasonably submitted, is manifestly a declaration having the effect of a “reservation”,

because it has the direct and deliberate effect of modifying or excluding the provisions of

the Protocol, so as not to apply to or ‘have any effect on or regulate’ the use of nuclear

weapons, including those as possessed by the United Kingdom. Where otherwise,

especially now in light of the nuclear weapons Advisory Opinion of the ICJ (1996 – as

above) on the application of this Protocol, they would indeed otherwise have such an

effect.

35. However, in this instance, the treaty (an international statute) to which this (domestic)

Statue purports, at least in part, to give domestic law internal effect instead, as we have

12 As per para.19 (above)

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now seen (as above at para.23) makes the following simple and unambiguous provision

at article 120, as follows:

“Article 120 : Reservations

No reservations may be made to this Statute.”

Consequently, it is submitted therefore that, as a matter of law, no reservations being

permitted by this treaty, it follows then that no diplomatic statement having the

character of a “reservation”, and made by the United Kingdom, in relation to a different

treaty, with respect to which such reservations are permitted, can then be “relevant to

the interpretation of the articles” in this treaty instead, where such reservations are

simply expressly prohibited.

36. Considering next the case of “declarations”, although inexplicably not mentioned in the

Order in Council, the United Kingdom in fact attached the following Declaration to its

Instrument of Ratification, with respect to this treaty, as follows:

"The United Kingdom understands the term "the established framework of international law", used in article 8 (2) (b) and (e), to include customary international law as established by State practice and opinio iuris. In that context the United Kingdom confirms and draws to the attention of the Court its views as expressed, inter alia, in its statements made on ratification of relevant instruments of international law, including the Protocol Additional to the Geneva Conventions of 12th August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8th June 1977." 13

(emphasis added)

37. So fine. “In that context” then let us look carefully at the State practice and opinio iuris as

adopted by the overwhelming majority of States comprising the community of civilised

nations in this World, and at the most authoritative and highest expressions of judicial

opinion within it ; and then let us compare that with the views as expressed by the Crown

in the declarations made relative to its own previous earlier ratifications.

38. The First Additional Protocol to the 1949 Geneva Conventions (1977) has now been both

signed and ratified by at least 174 Nation States, of whom precisely 3, ourselves, the

13https://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp? action=openDocument&documentId=34213524F9312D84412566D600587078

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French Republic and Canada, have entered reservations or understandings to the effect

of seeking to exclude nuclear weapons from its scope. It has been signed, but as yet not

ratified, by a further 3 Nation States, of whom one, the United States of America, has

declared a similar such reservation upon the occasion of its signing14. 4 States out of 177

(2.25 %). International relevance of UK state practice = nil.

39. Turning then next to opinio juris we have the view of no less an authority than the ICJ

itself, as expressed in the 1996 Advisory Opinion on “the legality of the use or threat of

use of nuclear weapons”, (as previously recited above) among other places e.g. at

para.84, as follows:

“Additional Protocol 1 in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular, the Court recalls that all States are bound by those rules in Additional Protocol 1 which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol 1. The fact that certain types of weapons were not specifically dealt with by the 1974-1977 conference does not permit the drawing of any legal conclusions relating to the substantive issues which the use of such weapons would raise.”

For that matter we even have the submissions in the case to the Court by the UK itself, as

follows:

"So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello"

(United Kingdom,CR 95134, p. 45);

Number of statements of international judicial opinion favouring the view that the

provisions of the Additional Protocol I (1977) do not apply to nuclear weapons = Nil.

Relevance of UK ratification reservations to international opinio iuris – NONE.

40. Final conclusion, as to the “relevance” of UK practice, with regard to its previous

declaration of nuclear weapons exclusion reservations, when ratifying international

14 https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=D9E6B6264D7723C3C12563CD002D6CE4

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treaties where such reservations were permitted; to the international State practice and

opinio iuris on the interpretation of the expression "the established framework of

international law", as used at the outset in article 8(2)(b), instead – NONE. Consequently,

relevance of those earlier reservations to the “interpretation of” that article, per s. 50 (4)

of the 2001 Act, which provision when ratified by the Crown it did so on the explicit

understanding that it may only so ratify without making any reservations whatsoever –

NONE.

41. Bear in mind that when promulgating the domestic implementing legislation, namely the

ICC Act (2001), it was always open to the Crown to present to Parliament in its Bill a

provision, in relation to Article 8 (2) (b) of the Rome Statute, whereby it stipulated

honestly and straightforwardly that the definition of a “war crime” as there in set out

should not be regarded as applicable in relation to the case of the use of nuclear

weapons. The consequence of such a candid stipulation being that, in spite of its

contumacious affront to the spirit of the ‘no reservations’ provisions of the said treaty, so

far as the Courts of the UK were concerned Parliament would have spoken and its

intention would have been paramount, whether consistent with HMG’s international

obligations or not. However, the Crown chose not to conduct itself in such an honest and

open fashion, but instead has attempted to achieve its nefarious ambitions by means of

the duplicitous and deceptive wordplay, referring instead to its ‘understandings’ of this

expression and its ‘interpretation’ of that article, as employed in both its ratification

Declaration and the interpretive provision in the Act itself.

42. So be it. Let it, nonetheless, now be judged openly and honestly on the true legal

relevance of its declared ‘understandings’ and the valid legal ‘interpretation’ and

significance of its previous reservation practice, in relation to other treaty obligations, not

legally permitted in relation to its ratification of the Rome Statute 1998 instead.

Conclusions.

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43. There are quite naturally several and many more considerations most relevant to the

practical issues arising from any actual attempt to pursue the matter of the criminal

liability of those responsible for the promulgation and pursuit of HMG’s declared policy of

nuclear deterrence, in a court in the UK. These would include at least the following

general topics15:

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.

Criminality of a conspiracy to commit a disproportionate attack - as an offence under UK domestic law , even though not an offence under international law per se as well.

The criminality, as established by UK case law, of a so-called “conditional conspiracy” -whereby the fulfilment of an agreed plan is dependent upon the realisation of the future existence of agreed external circumstances.

The evidentiary relevance of preparation, planning, design and simulation to the legal actus reus of a criminal conspiracy charge – as defined by the expression “agree to pursue a course of conduct”.

The need for specific technical and scientific evidence, as well as evidence of civil service practice and government policy on nuclear deterrence preparedness, to the presentation of a triable case.

The non-applicability of the well-known common law position of the British judiciary, established on the case law, whereby it considers all matters pertaining to the defence of the Realm, the disposition and armament of the Armed Forces, and indeed all matters falling within the umbrella of ‘national security’ issues in general, to be a forbidden or prohibited area, hidden from judicial examination – the so-called “prerogative immunity”..

And finally of course the inevitable bogeyman of the requirement for, and the all too

predictable refusal of, the Attorney General’s fiat or consent to a prosecution, and the

potential ‘reviewability ‘of said refusal.

15 many of which matters I have previously addressed in several published articles and in particular the book titled "the PAX LEGALIS papers" ISBN 1 87766 18 1

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44. However, I remain very firmly of the view that it is both an immensely worthy and

worthwhile cause to pursue these matters, even in court, and with vigour; given the

enormity of the humanitarian need, political significance and the scale of the diplomatic

hypocrisy upon which our political masters rely for the achievement of their designs.

Accordingly, I remain happy, upon further instruction, to offer a further Part II to this

present Advice as, if and when needed to deal with those further matters among others.

Robert L. Manson

for and on behalf of

INLAP (Institute for Law, Accountability and Peace).

Fiat iustitia ruat cœlum

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