Litigation

inois v. Jarka: Bringing

For the first time On record, a jury
has been instructed by 4 State judge
thar the use OF threaened use of
nucitear weapons violates
international law. and on thar basis
has rendered an acquittal based on the
defense of necessity. Seven
demonstrators — including two nuns
and a number of theological and
college students — were acquitred on
April 15, in Illinois v. Jarka et al. They
had been charged with resisting arrest
in a November 1984 demonstration
outside the Waukegan Great Lakes
naval base in Illinois. The defendants
developed their necessity defense by
arguing that the demonstration was
an integral part of the movement to
arrest illegal actions by the U.S.
government in the conduct of its
nuclear weapons programs, and
policy roward Central America.

Francis A. Boyle, Professor of Law
at the University of Illinois and a
member of the Lawyers’ Commiutree
Board of Directors, testified on the
case a5 an expert on questions of
international and criminal law. One of
eight witnesses called by the defense,
Professor Boyle testified that the
mining, ‘which nad proceeded
without Senate knowledge,
violated international law and that
continued U.S. involvement in
Central America. a5 well as continued
deployment of first-strike cuclear
weapons Systems constituted ongoing
criminal activity. The activity
therefore presented a clearly
iraminent danger to the defendants,
one which they were obliged by
snternational law to prevent.

In this, as in previous (but
unsuccessful) cases in which the
defense had been raised, expert
witness testimony has focussed on the
responsibility of citizens, deeply
enshrined in the U.S. constitution and
more recently, in international
standards established in the
Nuremberg judgements. to insist that
foreign policy be carried on within
the restraints of international law.
The most important of the Nuremberg
judgements, experts in these cases
point out, made clear that in matters
of war and peace. government leaders
would be held individually
accountable for violations of

international law, even if they
themselves were acting On the orders
of superior officials. As such, the legal
order built on the Nuremberg
judgements and the six Principles
subsequently adopted by 4 unanimous
vote of the United Nations General
Assembly, provides a valid set of
yardsticks by which to appraise the
legality of governmental conduct and.
to guide and determine individual
conduct. The undesiying idea is that
each person in whatever societal
position is called upon to avoid
complicity in the crimes punished at
Nuremberg, even if it means violating
normal domestic laws. This wider
pattern of responsibility is referred to
as ‘tthe Nuremberg Obligation. ”

In relying on the Nuremberg
Obligation, nuclear protestors argue
that the production. deployment and
threatened use of ‘“First-strike
weapons (weapons whose accuracy
and vulnerability make chem useless
for retaliation, but effective if used for
initial attack) constitutes ‘planning
and preparation” for waging 2 war
of aggression or a war in violation of
international treaties, agreements oF
assurance’ — “crimes against peace”
as laid out in Nuremberg Principle VI.
By demonstrating the illegality of
government actions (and of the
actions of those in complicity),
nuclear protestors are, in effect,

acting 3s law enforcement agents in

relation to their government. In so
doing, they are using the law to
reflect fundamental societal norms
which are increasingly overiooked by
traditional representative institutions
and elective procedures where
national security policy is concerned.

In light of sustained bipartisan
endorsement of most aspects of U.S.

‘Attachment ‘C!

international Las to Bear

nuciear policy. including the erosion
of Congress: authority to declare war,
Richard Falk writes: ‘Representative
democracy is now dead when it
comes to nuclear national security.
Citizens CONSCIOUS of the Nuremberg
Obligation cannot in these
circurnstances rely on normal political
channels. Acts of resistance must be
understood. then. both as a reflection
of the current failure of democratic
governance and as a creative effort
designed to promote the revitalization
of democracy. The political
implications of the Nuremberg
Obligation require. in effect, 2 new
encounter between the citizenry and
the state, resulting in a mew
framework of official accountability
in accordance with new legal and
moral guidelines. what amounts to 4
Magna Cacta for the Nuclear Age.
Nothing less can restore 2 real
significance to democratic pracesses
and give real conterit co the claim that —
the legitimacy of government rests Of
the consent of the governed.
Citizenship and patriotism in the -
nuclear age must be - increasingly
understood 35 requiring participation
in this struggle.” @

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