Society

Is Trident legal?

David Mackenzie

Let's talk about Scotland and progress. In the 7th century that cantankerous Celtic cleric Adomnan drew up his Law of the Innocents, aimed at protecting non-combatants in warfare. Now, 14 centuries on, Scotland has within its borders, partly maintained and deployed by Scottish citizens, a weapon system whose only overt purpose is to threaten the mass destruction of non-combatants.
     Recent mainstream arguments against Trident have concentrated on its cost and strategic uselessness. Both critiques are no-brainers, leaving the question as to why the Westminster establishment clings on to it. Again the answer is fairly obvious. It's not the one they advance about security in an uncertain world. I could use the same argument to justify keeping a flame-thrower in a cupboard under the stairs, living as I do in the uncertain world of Tillicoultry. Here's what haunts them – the fear of national castration. Odd, that those who have no real cohones are always worried about losing them.
     But we were talking about Scotland and I am going to begin by giving some credit to our minority government for its stand on the matter and for setting up the working group on Scotland without nuclear weapons. Well done, so far. But there is a huge chunk missing – perhaps the most significant one of all.
     So let's detour to the Nuremberg Corollary. Most are familiar with the Nuremberg Principles, especially that one about being under orders providing no excuse for committing a war crime. The Corollary is that being under orders is no excuse for not actively upholding international humanitarian law. You can call it the principle of comprehensive devolution. When it comes to international humanitarian law, responsibility goes down the devolutionary ladder as far as there is any freedom to operate. In that context, the technicalities of protocols and reserved powers have no meaning.
     So, it is especially disappointing to discover that the Scottish government, in its response to the report of the working group has said that as far as the law is concerned the judgment arising from the Lord Advocate's Reference in 2000 (LAR 2000), is the final word on Trident. In other words Trident is legally kosher.
     For those who don't recall the story, in 1999 three women who trashed a Trident-related research barge were acquitted on the grounds that their defence had shown that the system was illegal under international law. The sheriff's decision was referred to the High Court, leading to LAR 2000. The judges, Lord Prosser et al, said the sheriff got it wrong. Among a swathe of forensic bêtises, the judgment took the view that international law on the conduct of war (such as the Geneva Conventions) did not apply to preparations for war, and they tended to suggest that a state might seek legal advice on the use of a nuclear weapon at the point when its use was being contemplated. Four minutes are usually not long enough for extracting a lawyer's opinion, especially after hours. No wonder Lord Prosser did not wear his wig to deliver the judgment.
     But if that 2000 bench got it ludicrously wrong the government is also in grievous error by respecting that judgment. The devolutionary principle enshrined in Nuremberg means that anyone with relevant freedom to operate has to take their own view of the relationship between the activity planned (e.g. the digging of mass graves, the rounding up of ethnic groups, etc) and international law, and then act appropriately. In the present case the first appropriate step would be to raise the questions publicly. How can Trident be compatible with international law when it threatens mass murder and environmental disaster? How can our High Court have got it so wrong? Even if we water it down to a prima facie case the Scottish government has a clear duty under international law to raise a real stushie.
     Trident is a big enough issue all on its own but it is tied in with much, much more. At bottom, international humanitarian law is not about wigs and dust but rather about how we can share some basic global ground-rules that will help us survive amid peace and plenty. At the last Holyrood election I voted SNP because I felt that they understood this. Apart from the staunch solidarity with the Faslane protesters there was the stance taken on Iraq, rendition flights through Prestwick, and on the abuse of asylum seekers. There was the hope that devolution could add a distinctive Scottish flavour to making this world a safer, gentler place.
     I recall veteran US anti-Trident campaigner Bill Bicksell telling me that 'Scotland is the key'. He meant that Scottish resistance to Trident could be the string-end to begin to unravel the addiction of the nuclear powers to ultimate violence. The hope is still there, but we all need to show some smeddum.

David Mackenzie was a secondary school teacher, education adviser and an education officer before taking a full part in the Trident Ploughshares campaign. He is currently active in the Forth Valley area on nuclear disarmament and on extending allotment provision for local people