[NukeNet] FW: WMD Here Plowshares

Tue Aug 29 09:13:03 CDT 2006

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (voice)
217-244-1478 (fax)
fboyle at law.uiuc.edu
(personal comments only)

-----Original Message-----
From: Boyle, Francis 
Sent: Tuesday, August 29, 2006 9:02 AM
To: abolition-caucus at yahoogroups.com
Subject: WMD Here Plowshares

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHWESTERN  DIVISION

CASE NO:
1:06-CR-59-DLH-CSM-_____________________________________________________
________

UNITED STATES OF AMERICA,

            Plaintiff,

vs.

1.	CARL KABAT, 
2.	GREGORY BOERTJE-OBED 
3.	MICHAEL WALLI

            Defendants.

______________________________________________________________

DECLARATION OF FRANCIS A. BOYLE

            Pursuant to 28 USC 1746, Francis A. Boyle declares under
penalty of perjury:

            1. I am a professor of law at the University of Illinois, at
Champaign, Illinois. I hold both a Juris doctor magna cum laude and a
Ph. D. in Political Science from Harvard University.

2. I am an expert in International Law and foreign policy. I have
studied, read, and written extensively in these areas, and have been
qualified as an expert witness in several courts across the country. I
have also taught in the field of criminal law. My resume is attached to
this declaration and incorporated by reference.

3. I offer this declaration in support of the Motions to Dismiss the
charge of malicious destruction of property (18 USC 1361) and in
establishing the content and application of the laws of war to elements
of the offense charged and in support of justification defenses
including necessity and crime prevention.

4. I am aware that expert opinion on points of law is ordinarily not
permitted in court. Opinion of published international legal scholars is
an important exception to that rule. The Statute of the International
Court of Justice provides that questions of international law shall be
determined by resort, inter alia, to "the teachings of the most highly
qualified publicists of the various nations..." Id., Art. 38 (1) (d).
An integral part of the United Nations Charter, which is a treaty and
thus equivalent to a federal statute as Supreme Law of the Land, this
rule of evidence is applicable in federal court. The Supreme Court
expressed the same opinion in The Paquete Habana, 175 US 677, 700
(1900). Cf. Fed. R. Crim. P. 26.1 (ordinary Rules of Evidence do not
apply to determination of foreign law).

5. In the implementation of foreign policy, the current Administration
has threatened to use nuclear weapons and was on June 20, 2006, actively
threatening to use the Minuteman III, E-9 at issue in this case. Because
this threat or use of 300 kilotons of heat, blast and radiation are
uncontrollable and because the threat or use of this weapon is for a
"first-strike," the Minuteman III, E-9, on June 20, 2006 was not merely
unlawful, but actually criminal. This conclusion is elaborated in
paragraphs 6-15 below.

6. The body of federal law which governs these matters includes rules
and principles of international law. International law is not "higher"
or separate law; it is part and parcel of the structure of U.S. federal
law. The Supreme Court so held in the landmark decision in The Paquete
Habana, 175 US 677, 700 (1900), recently reaffirmed in Hamdan v.
Rumsfeld, (U.S. Supreme Court, No. 05-1846. Argued March 28,
2006-Decided June 29, 2006). Thus international law must be considered
along with Congressional statutes, Constitutional law, administrative
law, federal common law, Rules of Court, military law, the laws of war,
incorporated state law and any other pertinent body of law, whenever it
applies according to the pertinent rules of supremacy, parallel
construction, and choice of law.

7. International law, as part of US law, includes the laws of war. Under
the fourth Hague Convention, various types of weapons are absolutely
prohibited under all circumstances. For example, no nation may use a
weapon which causes unnecessary suffering to human beings. Second, the
use of poison or poison weapons is flatly prohibited by the Hague
Regulations, by the Geneva Protocol of 1925, and by the US Army Field
Manual 27-10 on the Law of Land Warfare (1965) and the US Department of
the Air Force Pamphlet on "International Law -- The Conduct of Armed
Conflict and Air Operations" (AFP 110-31, 1976). The United States is
bound as a party to each of these. Third, a nation may not adopt methods
or tactics of warfare that fail to distinguish between combatants and
non-combatants. Because of the inevitable effects of the explosion of
the Minuteman III, E-9, each of these rules prohibits its use. Other
provisions of international law, moreover, prohibit destruction of the
natural environment, another inevitable consequence of the explosion of
any nuclear weapon including the Minuteman III, E-9. 

8.  The most recent and most authoritative summary of the current and
binding laws of war as applied to any threat or use of nuclear weapons
is found in the International Court of Justice Opinion, Legality of the
Threat or Use of Nuclear Weapons , 8 July 1996. As further explained in
my recent book The Criminality of Nuclear Deterrence, the Minuteman III
is in a category of nuclear weapons that is, ipso facto, incapable of
distinguishing between civilians and combatants, is uncontrollable in
space or time and causes unnecessary suffering. Thus any threat or use
of the Minuteman III, E-9 was illegal and criminal.

9. The Charter of the Nuremberg Tribunal made explicit that violations
of the laws of war are criminal and that individuals are punishable for
committing war crimes. In addition, the Nuremberg Charter defined crimes
against peace and crimes against humanity. The former basically consist
of waging a war of aggression or a war in violation of a treaty or other
international obligation. It is also important to note that the
Nuremberg Charter articulates inchoate crimes as well, such as the
planning or preparation and conspiracy to commit a crime against peace,
a crime against humanity or a war crime.

10. These provisions apply equally in times of formal peace as in times
of war.

11. The various scenarios developed by the United States Government for
the use of nuclear weapons cannot be accomplished without violating
international law, including the laws of war. The plans for targeting of
US nuclear weapons are found in the Single Integrated Operational Plan
("SIOP"), which lists the targets to be destroyed in a number of nuclear
and non-nuclear countries. To employ these weapons, as is currently
planned, would clearly violate the Nuremberg Principles, in that the
concept of a crime against humanity specifically prohibits such wanton
destruction. 

12.  I am aware from my reading and study, including the Nuclear Posture
Review (January, 2002) and the National Security Strategy (September
2002) as well as fact sheets and reports published by the Air Force
specifically related to the Minuteman III, that US nuclear policy
includes on-going threats of a "first-strike" made "believable" by
maintaining the Minuteman III at a high-alert rate (above 98 percent),
prepared for launch on short notice. I am further aware from my reading
and study that a high degree of accuracy of the Minuteman III is crucial
to a first strike.

13. Any first use of nuclear weapons would, for that reason alone,
violate the United Nations Charter and the Hague Convention No. III of
1907, prohibiting the opening of hostilities without a formal
declaration of war. And any use of even one nuclear weapon such as the
Minuteman III, E-9 in any circumstance whether in response or defense
would violate the principles of necessity and proportionality because it
cannot be used within the intransgressible rules and principles of
humanitarian law.

14. Since the threat or use of the Minuteman III, E-9 is inherently
criminal under international and US law, anything used to facilitate its
operation is an instrument of a crime.

15. The judgment of the Nuremberg International Military Tribunal meted
out severe punishment in 1946 against individuals who, acting in full
compliance with domestic law but in disregard of the limitations of
international law, had committed war crimes as defined in its Charter. 6
FRD 69 (1948). (That Charter has been enacted as a law of the United
States, 59 Stat. 5144 (1945). By implication, the Nuremberg judgment
privileges all citizens of nations engaged in war crimes to act in a
measured but effective way to prevent the continuing commissions of
those crimes. The same privilege is recognized in Article 38 of the
Statute of the International Court of Justice, "General Principles of
Law Recognized by All Civilized Nations," which has been adopted as a
Treaty by the United States. In my opinion, such action certainly could
include non-violent exposure, inspection and symbolic disarmament of
sites of ongoing war crimes.

16. In the present day, there has been a breakdown in the Constitutional
principle of checks and balances which implements the separation of
powers; most notably neither Congress nor the courts have been willing
to ensure that the Executive Branch act within the laws that limit
methods and means of the threat or use of military force. The fact that
Minuteman III missiles exist and that their use is actively threatened
on high alert reflects the stubborn refusal of the US to abide by its
own fundamental laws of war and to proceed with negotiations for nuclear
disarmament in all its aspects. In spite of years of in which these
Defendants have participated in citizens petitions, letters,
referendums, civil cases, requests for criminal prosecution and the
recent decisions on these questions with the full participation of the
United States before the International Court of Justice, the US flouts
its responsibility to abide by the laws of war, laws to which we are
fundamentally bound.  Under these circumstances , where redress within
traditional channels is refused and ineffective, domestic criminal law
coincides with the "Nuremberg privilege" mentioned in the preceding
paragraph to afford a justification for seeming violations of domestic
criminal laws in an effort to prevent the war crimes outlined above.

17. In my opinion the charge brought against these defendants in these
circumstances must be dismissed. This prosecution for malicious
destruction of property must be dismissed because the court may not
apply the general protection of property statute in a way that ignores
or abrogates the fundamental laws of war. In these circumstances, where
the alleged "property" is part of an illegal and criminal threat of use
of a weapon of mass destruction these defendants acted lawfully and
reasonably to prevent the most egregious and fundamentally prohibited of
all crimes, war crimes.  

18. I declare under penalty of perjury that the foregoing is true and
correct. I am prepared to testify under oath and answer questions on
these and related matters.

Signed this _28_____ day of 

August 2006, at Champaign, Illinois

 ___________________________

 FRANCIS ANTHONY BOYLE          

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (voice)
217-244-1478 (fax)
fboyle at law.uiuc.edu
(personal comments only)

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