Indiscriminate Weapons and International Law
By Steve Clemens. March 2005
In defending oneself against charges related to “criminal trespass” at a military base, a weapons manufacturer, and/or federal facility/office, a civil resister can choose either an offense or a defense. The former argues that you were compelled to act and often references obligations assumed under International Law and the precedence set by the Nuremberg /tribunals. The latter argues what one did not do.
Being proactive: an offensive “defense”
Some very successful sport coaches push the concept – the best offense is a good defense – or good pitching always beats good batting … encouraging players to see how “defense” can be an aggressive way to win. In the area of civil resistance to the manufacture and use of weapons of indiscriminate destruction, some activists strive to show the court that they have responsibility as moral human beings, as citizens, as “Good Samaritans”, to take nonviolent action against organizations which promote or use these weapons. To use this “defense”, nonviolent actors strive to demonstrate that existing law compels them to address what is clearly a violation of both the spirit and letter of those laws.
In the United States, the federal Constitution provides the basis for determining what is legal (or not) for the national government, the states, and its citizens. In the U.S. Constitution there appears what has been referred to as “the supremacy clause”. Article VI contains the provision “…and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby…”. This provision implies that international treaties which have been signed by our government and ratified by the Senate essentially “trump” all other local and national law. If an activity done by a manufacturer or behind the fenced-in area of a military base is illegal, that entity cannot hide behind the “protection” of private property laws to remain unaccountable for its wrongdoing.
So the question turns to “what are the provisions of treaties made under the authority of the U.S.?” At least since the appearance of the new killing technology of the Gattling gun in the U.S. Civil War, ethicists and diplomats have wrestled with the issue of “the rules of war” or what limits must be placed on this mass killing done by nation-states. Near the turn of the 20th century, a group of nations convened talks in The Hague, Netherlands to discuss these very issues. The resulting Hague Conventions of 1899 and 1907 became treaties whereby the countries party to the treaty or convention agreed to place limits on the types of weapons which could be used in warfare. While most parties self-righteously decried the brutality and immorality of modern warfare, they wished to continue to allow themselves the option to go to war, restricting, in this case, what weapons and tactics must be forever outlawed by the world community. Included in the Hague Convention of 1907 are provisions which state “The right of belligerents to adopt means of injuring the enemy is not unlimited.” (Section II, Chapter 1, Art. 22). Article 23 gets more specific: it is especially forbidden “to employ poison or poisoned weapons” and “to employ arms, projectiles, or material calculated to cause unnecessary suffering” among other prohibitions.
In the aftermath of WWI and WWII, the community of nations gathered in Geneva to continue to find ways to limit war and protect civilians. Out of these efforts arose the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, June 17, 1925 and the Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 1949. Additional Protocols to the Geneva Conventions have been adopted over the years including Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I of 1977). This protocol, while repeating previous prohibitions on weapons and tactics in war, also prohibits as well the employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment” (Article 35, paragraph 3; also: Article 55). There are also explicit regulations regarding the protection of civilian population against effects of hostilities (Article 48; Article 51, paragraphs: 1, 4-c, 5-b; Article 57, paragraph 2-a-ii). These provisions make it clear that “the Parties to the conflict shall at all times distinguish between the civilian population and combatants”, “The civilian population as such, as well as individual civilians, shall not be the object of attack”, and indiscriminate attacks are prohibited. “Indiscriminate attacks are: … (c) Those which employ a method or means of combat the effects of 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.”
In 1980 another treaty nicknamed “CCW” was adopted. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980 stated that the “High Contracting Parties” wished to prohibit or restrict the use of certain conventional weapons with a goal of “putting an end to the production, stockpiling and proliferation of such weapons”.
In 1996 and 1997, the United Nations Sub-Commission on the Promotion and Protection of Human Rights passed resolutions which found “production, sale and use” of nuclear weapons, cluster bombs, and depleted uranium weapons “incompatible” with existing humanitarian and human rights law and identifying them as “weapons of mass destruction”.
When the United States signed the treaty establishing the United Nations, it also adopted the work of the Nuremberg Tribunal and the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. These principles make clear that “I was only following orders” is not a defense against war crimes (IV). The fact that a local or national law does not prohibit an act also does not relieve one of responsibility under international law (II). And “complicity in the commission of a crime against peace, a war crime, or a crime against humanity … is a crime under international law” (VII). To remain silent and inactive when one is aware that a company is manufacturing and selling illegal, indiscriminate weapons of mass destruction, or that a military base is stockpiling them, or a nation is using (or plans to use) them, is to be complicit and in a participatory democracy one’s silence implies consent. One therefore is compelled to take nonviolent action to prevent these war crimes from being committed.
The International Committee of the Red Cross is the organization that is charged with the education and implementation of “International Humanitarian Law” – these treaties which are also known as “the laws of war”. It calls “preventive measures” which include spreading knowledge of humanitarian law, “repressive measures” to put a halt to all violation including “the obligation to repress, by the national courts, grave breaches considered as war crimes”, and “other measures of implementation for prevention, control, and repression” which include “diplomatic efforts and pressure from the media and public opinion [to] help ensure implementation of humanitarian law.”
The lack of criminal intent
In order to be found “guilty” of a charge of criminal trespass, one must have the “mens reas” (guilty mind) or the mindset to know that what one is doing is wrong. It is necessary to show that those accused of this crime have a “criminal intent” or know what one is doing is wrong yet does it anyway. It is clear from the above listing of International Laws and Treaties that if one is attempting to honor (and implement) the intent of those “supreme” laws, one does not have the criminal intent to be found guilty of the trespass law. The Nuremberg Principles make it clear that the weapons manufacturers, the military bases, and the governmental offices cannot hide behind private property laws when they are in the process of committing what international law has labeled war crimes, crimes against peace, and crimes against humanity. One does not have to be an “expert” in international law to avail oneself of this defense; one needs to hold this belief sincerely and it needs to be understood as “reasonable” according to a jury of one’s peers.
Until or unless the world community finds better ways to “enforce” International Law against powerful nations which flaunt their disobedience, it is left up to actors of conscience to raise these issues in the public forum, risking arrest (and possible conviction) to move us in the direction we have pledged ourselves to when those treaties were approved by our constitutional process.