Going To Jail for Peacemaking

Going To Jail For Peacemaking by Steve Clemens. May 15, 2012

I could tell by the way the jurors entering the courtroom today refused to meet our eyes or even look at us that the verdict would go against the 11 peacemakers on trial in Hennepin County’s 4^th District Court. The jury trial was the result of a nonviolent witness at the entrance of Alliant Techsystems’ corporate headquarters in Eden Praire, MN just two days before ATK would move its main office to Arlington, VA on October 1, 2011 to be close to the Pentagon, its largest customer. 

There were 12 defendants the day we were arrested on trespass charges when we refused to leave unless we could meet with the CEO or other corporate officers to deliver a Civil Arrest Warrant as well as a notebook entitled “Employee Liabilities of Weapons Manufacturers Under International Law”. Even though the Eden Prairie Police Officers agreed to place the documents we carried into our case files, Judge Ronald Abrams agreed with Prosecutor Patrick Leach’s objection to the documents being allowed to be entered as evidence in our trial. So the jurors never had the excerpts of the international laws and treaties in front of them when they deliberated and instead seemed to agree with the prosecutor’s closing statement claiming we cited no actual laws in our defense after he and the Judge had prevented including them as evidence.

Despite the disappointing verdict, it was a great pleasure to hear the moving, clear testimony of my fellow defendants. I was proud to sit beside Sister Marguerite Corcoran at the defense table and watch her slowly walk up to the witness chair aided by her cane due to her Parkinson’s. She knew, given some of her health challenges, that at age 82 this might be one of her last times she might be able to participate in civil disobedience for a cause she cares deeply about. She wasn’t alone in that sentiment: her housemates, Sister Rita McDonald, age 89, and Sister Kate McDonald, age 83, didn’t choose to sit on the sidelines that September morning and so were great compatriots while testifying on their own behalf.

A third of the four “notorious” McDonald Sisters, Brigid, was feisty with her comments in the courtroom, expressing her outrage that ATK can profit by killing people yet we were the ones hauled into court rather than “the real criminals”. Jeanne Hynes carried a bandaged doll to the ATK protest and brought it again to hold while testifying about how indiscriminate weapons like the ones ATK sells continue to victimize real children – and keep killing and deforming long after a war has ended. Dr. David Harris, a retired surgeon and military veteran told his reasons for joining the arrest witness. Retired postal worker and fellow veteran, John Schmid tried to talk about some of the medical affects he has learned about from depleted uranium but Prosecutor Leach interrupted his testimony as irrelevant. Roger Cuthbertson attempted to explain the need for a citizen’s arrest procedure but was also stifled by objections which were sustained by the Judge.

Tom Bottolene, the creator of Alliant Action’s webpage and fount of information about Minnesota’s largest war profiteer testified about ATK’s history of making indiscriminate weapons, describing three of them in greater detail: cluster bombs, the XM-25 combat weapons designed to fire around corners or over walls, and depleted uranium. He told of our October 2010 “secret meeting” with ATK’s CEO, Mark DeYoung, and how he told us his company was no longer making depleted uranium munitions, indicating that he did not feel compelled to continue some of the “bad” decisions of his predecessors. Bottolene went on to describe his attendance at the AKT Shareholders meeting in August 2011 where CEO DeYoung admitted that the new contract for tank shells included depleted uranium. Therefore, Bottolene continued, it was incumbent that we remind the CEO of the illegality of this indiscriminate weapon by trying to once again deliver to him copies of relevant treaties and international law contained in the notebook.

Bill Barnett, also a stockholder, told how he had been arrested while trying to attend a shareholders meeting in past years and once again asked the Judge to reconsider entering our notebook into evidence since we carried it with us at the time of arrest and certainly documented our intent that day – to no avail. My own testimony may have been the longest because I attempted to read into the court record excerpts of Treaties the U.S. has signed, including the Hague and Geneva Conventions which clearly outlaw indiscriminate weapons. I tried to describe provisions from the Nuremberg Tribunals which compel all people to resist complicity with War Crimes and Crimes Against Humanity. Although I managed to read a few of these excerpts despite the prosecutor’s objections, copies of these were prohibited from being included as evidence even though the US Constitution declares such treaties as “the supreme law of the land and judges in every state shall be bound thereby”. It appears that in Hennepin County, “supreme” somehow needs to take a backseat to private property trespass laws!

The jury took barely one hour to convict all of us when they returned to deliberate the next morning after receiving the jury instructions from the judge. After dismissing them, the Judge asked if we were ready to proceed to sentencing. The defendants were. Having already appeared four times in the courtroom at Ridgedale for arraignment and pre-trial appearances, we had little desire to make another separate trip to the façade of “justice”. However, the Prosecutor asked if he could have some time to consult with the defendants before making his recommendations to the Court.

“What do you want to do, Mr. Clemens?” Leach asked me. I responded that I felt my actions were a “community service” already and if the court felt it needed to punish me, I’d prefer to go to jail. “For how long?” was his response. I refused to set the parameters of my own punishment declaring that he should “let the punishment fit the crime.”

Why would I “choose” jail over a sentence of community service and a fine?

Doing the time for the “crime” certainly is closer to Gandhi’s own practice of asking his judges for the maximum penalty. He understood the value of taking on suffering as a moral force for change and how it exposed the violence and cruelty of the state. For me, having the Judge order me to jail helps expose the preposterous idea that peaceful, nonviolent protest should be punished when it challenges the “rights” of corporate war profiteers. [The Prosecutor went out of his way to say that he might not like what ATK produces and did not represent the company in his role as prosecutor. Other prosecutors I’ve had in the past went further –admitting they despised what ATK did – but all followed their prescribed role in protecting a trespass law over human life in “enemy” lands.]

Choosing jail is my offering to my new (and future) friends in Iraq and Afghanistan. It is a statement to them that I take seriously my desire to stand in solidarity with them in denouncing the scourge of depleted uranium and depleted consciences. Their knowledge that there are Americans willing to sit in jail (even if only for 10 days) out of concern for their well-being can hopefully help the healing needed between citizens of the US empire and citizens of its new vassal states in the Middle East and southwest Asia. I go to jail in good conscience to stand in solidarity with my friends Sami, Hakim, Abdulai, Sammera, Faiz, Zuhair, President Akeel, Zahra and Sharbanoo, Dr. Ali, Hiba, Dr. Askouri, and many others. I’ll have time in jail to think about and pray for them. I’ll have time to think about and pray for my own nation’s leaders and corporate chieftains.

Dr. David Harris, a stalwart friend (although all the other defendants have become good friends over our years of vigil and protest together), said he wanted to join me in going to jail when Mr. Leach asked him what he felt was an appropriate sentence for his conviction. Although he was sentenced to only two days in jail, the Prosecutor deciding (without a lot of first-hand evidence) that he had fewer criminal convictions, I am grateful for his act of conscience and solidarity.

While other defendants have been sentenced to between 32 and 68 hours of community service, our 12^th defendant, Charlie Bloss, had his sentence suspended because he remains in the hospital battling the effects of cancer. He had been excused from attending the trial but the court honored his desire to be included with us, accepting whatever verdict came down on the others.

So, after our conversation with the Prosecutor, one by one we were called before the bench for our sentencing. It was a little startling to hear “I sentence you to 90 days in the Hennepin County Adult Corrections Facility (Workhouse). Execution of 81 days is stayed for one year. You are fined $50. You will serve 10 days with the 10^th day served in lieu of paying your fine and surcharge and assessments. You will report to the Workhouse on June 26^th by 11AM. You are not to go on the property of 7480 Flying Cloud Drive in Eden Prairie for a year. No trespass (within the State of Minnesota) during that year. I wish you well in the future.”

David was sentenced before me and the Judge prefaced his sentence saying, “I work very hard to keep people out of jail. I am sending you to jail (at your request) with a heavy heart.” I believe he meant it. Our Judge is trapped in the same system which seems bent on victimizing everyone in the process. Such is life in the declining empire.

Blinded By "The Law"

Blinded By “The Law” by Steve Clemens. October 19, 2010

Judge Teresa R. Warner, perched above the packed Courtroom 131 B in Ramsey County Courthouse. A special hearing had been called to allow the 4 remaining defendants in the notorious RNC 8 case to agree to settle their cases with a plea bargain, thus avoiding the 4-6 week jury trial scheduled for beginning next week. She listened as each of the four young men pled “guilty” to either a charge of “conspiracy to commit damage to property in the third degree” or “conspiracy to riot in the 3^rd degree”.

She meticulously insisted that each of the defense attorneys go over what rights the defendants were “giving up” in exchange for their pleas: the right to a jury trial, the right to confront the witnesses, the right to testify oneself, … and on and on – as though these “rights” could somehow even the scales of “justice” when the State retained almost unlimited resources in the desire to win a conviction.

The prosecutors and the defendants (and their lawyers) had agreed to a plea bargain over the weekend: in exchange for a guilty plea, the State would ask for no jail time, no restitution, credit for “time served” after arrest, and agree not to force them to testify against other defendants about incidents around the Republican National Convention in September 2008. They recommended that those pleading guilty be given 100 hours of “Community Service” and requested a 2-year probation period be placed on each of the four.

Each of the Defense lawyers asked the Judge to “stay” (suspend) execution of her sentence for a shorter period of probation until the community service could be performed. Noting that each of the defendants had limited income and had all qualified for court-appointed attorneys due to their economic status, they also asked any fines be limited as well.

One-by-one, each of the four defendants came before the Judge, accepted the guilty plea, and was then asked if they had anything further to say before they were sentenced. Nathanael Secor stated that this case was about the criminalization of dissent. He said that while he was guilty of violating the law, local law enforcement personnel did “many acts” which were also illegal and have not been charged. He commented about the police being part of a network of “social control” which allowed the furtherance of “colonial wars”. He reiterated his desire to “abolish institutions of domination”.

Judge Warner, in preferencing her sentence, stated that she was sentencing Mr. Secor for “his acts, not his political beliefs or motivations”. She stressed she was following the law; he pled guilty to violating the law and was being sentenced for his actions, not his beliefs. After giving him “180 days in jail and a $1000 fine” she then said she would stay the execution of that sentence in exchange for one year of supervised probation (remaining law-abiding with no same or similar offenses and abiding by all the rules of the probation), 100 hours of community service, no more than 10 hours per month for 10 months, no restitution, would not be compelled to testify against others in related cases, and fined $200 plus court cost fees of $81.

Max Specktor was the next defendant to stand before Judge Warner. After his guilty plea, he stated that “conspiracy is only part of the story.” He decried the “spectacle of democracy” that we claim is practiced in the U.S., claiming he preferred to live in a more “decentralized world”. He preferred to address real economic needs he sees: “real needs versus conspicuous consumption”. “I refuse to sleep-walk through life”, he continued. He recognized that he and other defendants have had a lot of privileges in life, including being able to speak on their own behalf while “many too others lack those privileges.” He ended by saying he was committed to help “build the world we wish to see.”

Again, Judge Warner went out of her way to claim her sentence “is based on your acts, not your motivation.” It is what she feels is “appropriate, fair, and just.” It is not about “political opinions or ideals”. To quote Shakespeare’s Hamlet, “Methinks the Lady doth protest too much.”

This case is all about politics. From pre-emptive house raids to ridiculous trumped-up felony charges alleging “terrorism”, it has been from start-to-finish about “politics”. It was about politics to dismiss the charges against both the women and another male defendant. The County Attorney who brought the initial charges was running for Governor as a tough law-and-order candidate. And then there is the real reason any charges were brought at all: Sheriff Bob Fletcher. Most of what he does is political – playing to his political base while mired up to his eyeballs in corruption. His press conferences just prior to the Republican National Convention were designed to ramp up fear and hysteria about “anarchists” coming to his city to create mayhem. For me, the biggest tragedy of this plea bargain deal is that we won’t get to see Sheriff Fletcher in the witness chair, facing committed movement lawyers about what he did and why before and during the Convention.

But the most significant reason this case is all about politics is the utter silence in the courtroom about the grossest violation of law: what the Nuremberg Tribunal calls the supreme international crime: “to initiate a war of aggression”. The main reason thousands of citizens came to protest at the RNC centered around two wars initiated by the President of the United States in contravention of the United Nations Charter. For the court to pretend to strictly follow “the law” while ignoring the context of the war is not only disingenuous but absurd. The fact that both these wars continue (and continue to be ignored by both the media and the courts) is an indictment on our entire society.

Spector’s sentence differed only in the fine amount: $500 rather than $1,000 – most likely due to the different sentencing guidelines between conspiracy to riot rather than to commit property damage.

Rob Czernik followed with his statement of “proudly” when asked if he was guilty-as-charged. His answers of “yep” and “nope” to the questions asked him by the Judge and attorneys certainly did nothing to endear him to the Judge. When asked if he wanted to make a pre-sentencing statement, he responded, “Nope. Get on with it.” Judge Warner gave him two years of supervised probation instead of the one year the two prior defendants received. When asked by his attorney, Jordan Kushner, about the discrepancy, Judge Warner responded briskly that she wasn’t about to negotiate. Her decision was the “court’s discretion”. Excuse me, but “politics aside”, is such a statement from the court based “entirely on ‘the law’”? I doubt it.

Finally, Garrett Fitzgerald was the last defendant. He talked about the dedication of “his whole life to community”. He lives a life of voluntary poverty and sobriety. He was not “wanton” in breaking the law; he broke the law on the basis of his principles. He too claimed that he and the other defendants were specifically targeted for their “political beliefs”. After being cut-off by the Judge from reading a passage from Dr. Suess’ book, The Lorax, Fitzgerald concluded, “What we allow and what we don’t allow says a lot about our society.”

He must have struck a nerve: he got the extra year of probation as well.

I left the Courtroom with a conviction reaffirmed: the law is inherently political. These “laws”, especially protecting “property” do not come down from Mount Sinai; members of our legislature whose election is more often than not determined by who has the most money hash them out. Governors or Presidents who are also “elected” by a money-polluted system then appoint judges. Our system of check-and-balances counts on the Judiciary to help “establish justice”. I don’t think I witnessed much “justice” in the St. Paul Courtroom today.

Claiming Their Rights

Claiming Their Rights: When Nuns, Social Workers, and Librarians Confront The Military Industrial Complex by Steve Clemens. September 11, 2009


It wasn’t the usual group of criminal defendants in Hennepin County’s Courtroom 14D this week where Judge Lloyd Zimmerman presided. Minnesota judges are used to facing defendants who have been charged with drunk driving, burglary, assault, and even murder. And it is a rare occurrence when defendants who face up to three months in jail agree to “stipulate to the facts” of the charges against them before any evidence is presented by the prosecutor. In fact, after the stipulation was entered into the court record, the prosecutor for the City of Eden Prairie rested her case.

After all, the stipulation said both the defense and the prosecution agreed to the “facts”: The nine defendants went on the property at 7480 Flying Cloud Drive on March 4, 2009; they had not been invited and, in fact, were asked to leave; they refused; and the police were summoned and arrested them on the charge of criminal trespass. Only one element of the case was disputed: did the defendants have a reasonable belief that they had a “claim of right” to be on that property despite the wishes of the owner?

The youngest defendant is 52. Three were nuns in their seventies. An elementary school librarian. A retired social worker. An environmental engineer. At least four defendants are grandparents. And not a lawyer among them – they chose to go “Pro-Se”, to defend themselves. An old saying is often heard in the halls of most law schools: “He who defends himself has a fool as a client”. But these defendants thought this was no laughing matter. They sat before their jurors facing fines and jail because of conscience and conviction.

It was where the alleged trespass occurred that holds the key to understanding their determined and principled resistance – the headquarters of the largest Minnesota-based military contractor, Alliant Techsystems. Some of the defendants in the courtroom had begun their protest of the manufacture of illegal, indiscriminate weapons (especially cluster bombs) in the 1960s when Honeywell made them. After nearly twenty years of protest, vigils, and arrests, Honeywell chose to spin off their weapons products into another company, Alliant Techsystems – which is often referred to as ATK, their abbreviation on the stock exchange. That is significant. There is a lot of money to be made in selling both bullets and high tech weapons to a nation whose military budget grossly outpaces the rest of the world. But ATK doesn’t stop there. It markets its deadly products to more than 40 other nations.

Besides the deadly cluster bombs that one defendant told the jury “kills more children” when the “duds” are picked up by them thinking they might be toys, this war profiteer also makes depleted uranium munitions and land mines. Defendants testified about the effects of some of these weapons and cited International Treaties that ban their manufacture, sale, and use.

This is the lynchpin of the defendant’s case: did they have a “claim of right” to be on the property? The testimony from the stand connected the dots. The US Constitution states that treaties signed by our government become the “supreme” law of the land. The Hague and Geneva Conventions and the Nuremberg Tribunals signed by the U.S. declare weapons which are indiscriminate and kill civilians, damage the environment, and keep killing years after a conflict has ended are illegal. The Nuremberg Principles declare that “complicity” with war crimes and crimes against the peace or crimes against humanity is itself a crime. The defendants spoke about therefore having a solemn responsibility to take nonviolent action to try to prevent the manufacture, sale, and use of these illegal weapons.

What the defendants readily admit is on March 4th, they marched forth – right into the lobby of ATK carrying with them a notebook with the title: Employee Liability of Weapons Manufacturers Under International Law. They intended to hand this loose-leaf notebook to CEO Daniel Murphy or one of several other corporate officers and it contained a letter to him, sections of relevant International Treaties, and some case studies of weapons manufacturers who were prosecuted as war criminals under the Nuremberg Tribunals at the end of World War II. They requested to schedule a meeting with one of the corporate officials but were denied that as well. It was at that point they refused to leave.

Rita Foster, one of three nuns from the Sisters of St. Joseph of Carondolet, gave the opening statement for all the defendants. She described the actions and intent of the defendants on that morning in March.

Marie Braun was the first defendant to take the stand in her own defense. An indefatigable leader and organizer of the local anti-war movement and member of Women Against Military Madness, she told about meeting a German woman about her own age in the 1970s at a conference. When they were talking about their experiences growing up, the German woman told Marie that she had asked her parents why they hadn’t done anything to stop the Holocaust. Her parents told their daughter they “didn’t know” what was going on. Marie’s new friend told her, “I think they did know something.” They were afraid to act and now their daughter experienced the shame and guilt many Germans still feel today. Marie told the jurors she is now a grandmother and doesn’t want them to feel ashamed because of her failure to act – she knows what ATK makes.

Char Madigan, a nun who has worked with thousands of mothers and children who have suffered domestic violence, took the stand next. She talked about commonwealth versus corporate wealth and greed. She talked about taking responsibility rather than “hiding behind private property or trespass laws”. She said, “Just as property rights don’t protect from domestic abusers, nor should property rights protect weapons makers who violate international law. [Speaking] as a nun, property rights should not protect church officials from covering up pedophilia.” Char was clear that there should be some property rights but they have to be balanced and weighed with other important values, in her case with the value of international law to protect people during war.

John Hynes used to work at Honeywell until quitting in 1971. He was on the inside when Sister Char was vigilling outside! He told the jurors, “I wish someone had given me a copy of ‘Employee Liabilities’ when I worked at Honeywell.”

Kathleen Ruona only testified briefly and reminded the jurors that these weapons endanger all species, not just humans. John Braun, described the design and effects of cluster bombs. When he declared that civilians, especially children, were often victims of “dud” cluster bombs, the prosecutor objected, saying his statement was inflammatory.

Betty McKenzie, the third nun to address the Court testified about the effects of depleted uranium. She told the jury she was not a doctor or scientist but she had read plenty and heard experts talk about the horrendous effects the heavy metal poisoning and toxic radiation released from this newer super-weapon favored by the military. The judge instructed the jury, as he did for most of the witnesses, that her testimony was allowed not as “fact” but rather as to her “state of mind” when the defendant was arrested. It was up to the jury to determine if her beliefs and intent were “reasonable”.

The school librarian told a story about a children's picture book where the main character observes various children in her school being picked on or bullied. When none of her friends come to her aid after being poked fun of, her older brother reminded her that she also didn't " say something." Pepperwolf told the jurors, “I couldn't go back to school and face my students if I had this knowledge, this common knowledge of what these weapons do, and not ‘say something’. That is the title of the book: Say Something. “

Tom Bottolene gave the closing statement for all the defendants. He stated that the US Constitution was written for all the people not “we the corporations” or “we the government”. Since the case hung on whether the defendants had a reasonable belief they had a claim of right, Bottolene asked, “Is it reasonable to believe that this document has any meaning?” He went on to discuss the basis of international law and the rules of war. These were ratified by our government. And again he asked, “Do these documents have any meaning?”

He reminded the jurors that the Nuremberg Tribunals ruled that corporations were liable for their acts; that being told to or asked by the government doesn't excuse those actions. He explained how the Nuremberg rulings became part of the United Nations Charter, another Treaty signed by the United States government. “Is it reasonable to believe that document has any meaning?” he asked again. Then he told the jurors about his friend, the late Sister Rita Steinhagen. When she was on her way to prison for a nonviolent protest, she said, “I have the burden of knowing.”

For Tom, for the other eight defendants, and now the Judge and the Jury –all have the burden of knowing. We can’t tell our children like some German parents did after the Holocaust, “We didn’t know.”

[Just after I finished this article, the jury found all 9 guilty of trespass. The Judge sentenced them to a $300. fine or 24 hours of community service. In my opinion, they have already performed a service to the community with their acts of conscience.]

Personal Statement on Why I Risk Arrest at the RNC

Personal Statement on Why I Risk Arrest at the Republican National Convention. August 31, 2008

This immoral and illegal war against the peoples of Iraq must stop now!

I am required by the Nuremberg Principles to not be complicit with this war of aggression that the UN Charter calls a grave war crime.

I have written and called my Members of Congress as well as the President. I have sat in my Senators’ offices. I have marched and demonstrated in countless nonviolent vigils and demonstrations against this war and the illegal weapons (cluster bombs and depleted uranium munitions) used against the people of Iraq. I have protested the sanctioned use of torture and other violations of human rights under the guise of prosecuting a “War on Terror” – while, ironically terrorizing others! I have written Letters to the Editor. When I heard that President Bush planned to address the Republican National Convention in my home state, I felt I needed to nonviolently confront the President himself since this War and Occupation continues. (On the reverse side you will find the letter I hope to deliver.)

If I am arrested for nonviolently attempting to deliver this letter and the International Law documents I carry to the President, I will choose to refuse to pay bail to seek my release. To charge someone for their right to nonviolently voice their opposition to criminal activity is a tax against my conscience. I will refuse to pay bail to a government that seeks to protect this War Criminal.

I march and protest today in solidarity with the civilians of Iraq and the millions of refugees who have had to endure this violent attack and occupation of their homeland. I ask my fellow U.S citizens to rise up nonviolently and refuse to allow this war to continue.

I try to faithfully follow the example and teaching of Jesus of Nazareth who calls me to “Love my enemies” and “Love my neighbor as myself”. I call all those who claim to follow the life and witness of Jesus to find creative ways to stop this war and work to heal its many wounds.

Steve Clemens
2912 E. 24th St.
Minneapolis, MN 55406-1322
(612) 724-3255
__________________________

August 31, 2008
President George W. Bush
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20002

Dear President Bush,
I come today in profound opposition to your illegal and immoral war against the people of Iraq. As then-Secretary General Kofi Annan has pointed out, this war of choice and aggression is in violation of International Law – specifically the United Nations Charter, Articles 2 and 3 as well as Articles 39, 42, and 51 under Chapter VII.

In addition to the illegality of the initiation of this war, the execution of this war has also violated International Humanitarian Law (The Law of War) in numerous ways. The use by the US military under your command as Commander-in-Chief of “weapons of mass or indiscriminate destruction” as specified under UN Resolution 1996/16 (International Peace and Security as an Essential Condition for the Enjoyment of Human Rights above all the Right to Life), The Hague and Geneva Conventions (particularly Protocol I Part III Article 35 and Part IV Chapter 1 Article 51), and The CCW Treaty are defined as War Crimes. In particular, the use of cluster munitions and depleted uranium munitions, both of which are extremely indiscriminate, create long-term damage to the environment, continue to kill long after a conflict has ended, cause unnecessary harm and suffering, and are not restricted to the area of battle – thus failing all the tests which a weapon must pass muster to be legally used.

In addition to these illegal actions, your Administration has given the “green light” under your command to violate the treaty our nation has signed against the use of torture – even though you have callously tried to re-define that term. You have thus brought shame to our entire nation before the eyes of the world community.

Because our Constitution clearly states under Article VI (The Supremacy Clause) that all treaties signed by our government are “the supreme law of the land; and the judges of every state shall be bound thereby”, and because the Nuremberg Principles adopted in the treaty founding the United Nations declares that “Complicity in the commission of a crime against peace, a war crime, or a crime against humanity … is a crime under international law” (Nuremberg Principle VII), and because other nonviolent avenues I have pursued (including letters to you and my Members of Congress, visits to their offices, Letters to the Editor, public vigils and demonstrations, …) have thus far failed to end this illegal War and Occupation, I come today in hopes of personally delivering this letter to you.

I call on you to immediately announce a decision to withdraw all U.S. Military Forces as well as all “Private Contractors” (mercenaries) from Iraq as quickly as is physically possible while attempting to ensure their safety in withdrawal. In addition, I call on you to fully fund both a UN and/or Arab League security force to help protect Iraqi civilians coupled with the full funding of reparations to be paid to Iraq for the destruction of their country and infrastructure during this illegal war.

Sincerely,

Steve Clemens, 2912 East 24th St. Minneapolis, MN 55406-1322. (612) 724-3255

Indiscriminate Weapons and International Law

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.

The “Gift” of International Law

The “Gift” of International Law
Commemoration Service at ATK, Memorial Day 2004

We have learned in our high school civics classes and are told time and again by our political leaders that the United States of America was founded on a set of beliefs that proclaim a basic right to “life, liberty, and the pursuit of happiness”. As a people we both celebrate and champion the rights and freedoms we enjoy. But when the federal government was being formed, when our Constitution was being written, those who proposed this new government insisted that we are also part of a community of nations around the world. In Article VI of the US Constitution our government states that any treaties made by our nation with other nations become “the supreme law of the land”.

Ever since the nature of military weaponry became more dangerous, there have been efforts put forth to place limits on the scope and nature of warfare. This began in the US during its Civil War where a transition from the musket to a bored rifle and the introduction to a Gattling machine gun greatly increased the number of casualties. Around the turn of the 20th Century, nations met in The Hague, Netherlands to discuss together how to mitigate the horrendous effects of “modern warfare”. In 1907, these nations adopted rules of warfare which have been called The Hague Conventions. The nations who signed this treaty agreed to prohibit the use of certain weapons, especially those employing poison and weapons which caused unnecessary suffering. It clearly stated that the means of injuring an enemy were limited by law. The US Government signed these treaties.

After the disastrous effects of two world wars, nations once again met, this time in Geneva, Switzerland to continue to work at the problem of how these recent wars were fought. In Geneva, special attention was directed at the issue of the killing and injuring of civilians- non-combatants who suffered during a war because of deliberate actions taken by their or other nations. New language was adopted for these treaties, called The Geneva Conventions, again limiting what military forces were permitted or prohibited from doing during a war. New regulations mandated treatment of “Prisoners of War” as well as proscribing or prohibiting weapons which were “indiscriminate”, meaning that they killed “innocent” civilians as well as opposing military forces. It was the understanding of the nations which were involved in developing these treaties that both individuals as well as nations should be held accountable for violations of “Humanitarian Law” or The Laws of War. The US Government signed these treaties.

In the aftermath of the Second World War, the US Government and its Allies of France, Great Britain, and the Soviet Union, convened a trial in Nuremberg, Germany to investigate and punish “war crimes, crimes against peace, and crimes against humanity”. The prosecution, led by The Chief Justice of the US Supreme Court, Robert Jackson, accused and convicted military, political, and corporate leaders under the Nazi regime. The Agreement For the Establishment of an International Military Tribunal for War Criminals in Europe became another treaty signed by the US Government. At the end of the trials at Nuremburg, 7 Principles, called The Nuremburg Principles, were adopted and became part of the Treaty establishing the United Nations. The US not only signed the treaty but was a major force in crafting these Principles and Charter for the UN. Principle 7 of the Nuremberg Principles states that “Complicity in a … war crime or a crime against humanity … is a crime under international law.”

Later Protocols or additions to the Geneva Conventions were written and adopted into law further limiting what weapons could be used in war. Specific mention was made to prohibit weapons which might cause “long-term and severe damage to the natural environment.” Again language was included to mandate distinguishing “between the civilian population and combatants”. This treaty was adopted in 1977. In 1980, an additional treaty, called The CCW because it prohibited or restricted the use of “certain conventional weapons” continued the march of international law in rejected the use of weapons which were “indiscriminate”, “caused superfluous or unnecessary suffering”, and/or caused widespread, long-term and severe damage to the natural environment. The stated goal of the treaty was to “putting an end to the production, stockpiling and proliferation of such weapons.” More recent United Nations organizations, including the UN Commission on Human Rights, have adopted a specific ban on depleted uranium weapons and cluster bombs among other “indiscriminate” weapons.
As a member of the UN and as a signatory to these treaties, these International Humanitarian Law provisions are to be treated as “the Supreme Law of the Land” as stated in our constitution.

International Law is clear that not only the use of these weapons but also the “manufacture and sale” of such weapons is a violation of the laws of war. The conviction of “war criminals” at Nuremberg included some of the corporate executives of German factories making weapons. Many of us here today have called on our political and military leaders to renounce these indiscriminate weapons. We are here today to remind the corporation officials that they too are in violation of International Humanitarian Law.

The State of Minnesota has written into its Criminal Trespass Law a provision for individuals to make a good faith “claim of right” to be on the property of another. The US Constitution tells us that these treaties we have signed “trump” or are “supreme” over local laws. The Nuremberg Principles remind us that “complicity” with this illegal manufacture and sale of these weapons is a crime as well.

I am grateful for the “gift” of International Law which helps call us back to be part of the community of nations. These laws are designed to help us overcome our blind patriotism and call us to accountability. I commend all of you here today that are protesting the existence of these weapons and who want to break the “silence” that protects them and those who make them.

Steve Clemens
May 31, 2004