Abstract
Over many decades, individuals and groups have protested the use of nuclear energy as well as the proliferation and continued possession of nuclear armaments. When faced with criminal prosecution, many have sought acquittals via the necessity defence or through jury nullification. The use of the necessity defence and jury nullification has had some minimal to very modest success in some jurisdictions. Furthermore, there are considerable shortcomings related to these devices. This chapter argues that a new defence should be formulated to provide viable and appropriate protection for those engaged in “legitimate civil resistance” and fleshes out the elements of this new protection.
Amar Khoday D.C.L. and LL.M (McGill University), J.D. (New England School of Law), M.A., B.A. (Concordia University). Associate Professor at Robson Hall, Faculty of Law, University of Manitoba; Member of the Law Society of Ontario; Member of the Massachusetts bar; co-founding member of Robson Crim at Robson Hall, Faculty of Law, University of Manitoba; co-founding member of the Migration Law Research Cluster at Robson Hall, Faculty of Law, University of Manitoba.
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Notes
- 1.
This includes local/regional conflicts involving nuclear powers—most notably India and Pakistan.
- 2.
While President Trump’s generally brash and petulant nature combined with his threatening postures toward North Korea and its totalitarian regime may be celebrated among portions of Mr. Trump’s political voting base, it has not surprisingly triggered strong concerns about the possibilities of a nuclear disaster and questions about how his presidential powers could be limited. This is reflected in some contemporary mainstream media outlets. See e.g. Hasan 2017; Chávez 2017; Schwartz 2018. President Trump’s rhetoric and impulsive character has instigated concerns about the hazards of what could occur in the event of even an accident or misunderstanding. See e.g. Fisher 2018. However, as of this writing, President Trump and Kim Jong Un have met in Singapore and it remains to be seen what long term measures will be secured to minimize the fraught relationship between the two countries.
- 3.
Borger 2018.
- 4.
The storage of radioactive nuclear waste is a particularly contentious matter. Few communities and local citizens are volunteering to have their spaces used for such purposes. See e.g. Vaughan 2018.
- 5.
- 6.
- 7.
Quigley 2003, 27–31.
- 8.
Eiger 2017.
- 9.
Merry 1998, 599–600.
- 10.
Khoday 2016, 465.
- 11.
Sharp 2012, 87.
- 12.
For example, self-defence or defence of others typically looks to conduct undertaken to counteract some use of force or threat of force by another person. The defence of provocation reduces murder down to manslaughter where the intended killing was brought on by some provocative act or insult. Duress occurs where an individual succumbs to some threat issued by another person(s) and commits a criminal act in response to that threat.
- 13.
See e.g. Lippman 1992.
- 14.
Quigley 2003. Quigley notes too that even in state court cases, these were not always successful.
- 15.
As Frédéric Mégret points out in the context of civil disobedience cases, accused who engage in such conduct often have difficulty availing themselves of the necessity defence. He posits that most ‘acts of civil disobedience are not “necessary” in the way that is envisaged by the necessity defence. They will not necessarily lead to the result they intend to bring about, do not respond to an absolutely imminent danger, and are not necessarily the only means available. They belong to the register of political action rather than the register of the criminal law’. Mégret 2009, 159.
- 16.
Perka v The Queen, [1984] 2 S.C.R. 232 at 241–250.
- 17.
See Hoffheimer 2007.
- 18.
R. v. Latimer, 2001 S.C.C. 1 at para 28. Australia and New Zealand have adopted very similar elements. See R. v. Loughnan, [1981] V.R. 443; Kapi v. Ministry of Transport, (1992) 8 C.R.N.Z. 49 at 57 (C.A.).
- 19.
Perka v. The Queen, [1984] 2 S.C.R. 232 at 247.
- 20.
Perka v. The Queen, [1984] 2 S.C.R. 232 at 247.
- 21.
Perka v. The Queen, [1984] 2 S.C.R. 232 at 247.
- 22.
Perka v. The Queen, [1984] 2 S.C.R. 232 at 247–248.
- 23.
Perka v The Queen, [1984] 2 S.C.R. 232 at 246.
- 24.
Perka v The Queen, [1984] 2 S.C.R. 232 at 248. As noted above, the adoption of an excused-based model and the correspondingly explicit or implicit rejection of a justification model rooted in a choice-of-evils defence has been accepted in most US state jurisdictions that have adopted a necessity defence. The excuse-based model has also been accepted in Australia and New Zealand. See R. v. Loughnan, [1981] V.R. 443; Kapi v. Ministry of Transport, (1992) 8 C.R.N.Z. 49 at 57 (C.A.).
- 25.
Berger 2002, 850–851.
- 26.
Berger 2002, 850–851.
- 27.
Berger 2002, 850–851.
- 28.
Berger 2002, 851.
- 29.
Berger 2002, 857.
- 30.
This includes civil law jurisdictions such as France and Germany. Ibid. at 858–859. In one British appellate judgment, the court majority adopted a justification analysis in the case of two doctors who decided to separate conjoined twins. In that case, the doctors knew that in performing the surgery, one of the twins would inevitably perish but that failure to separate them would lead to both dying. In re A (Children) (Conjoined Twins: Surgical Separation), [2000] 4 All E.R. 961.
- 31.
Berger 2002, 859.
- 32.
Berger 2002, 859.
- 33.
See Hoffheimer 2007.
- 34.
It is perhaps the (at least perceived) radical nature of the MPC version of the choice of evils defence that has led so many jurisdictions to adopt the more restrictive version. However, as I hope my discussion of the LCR defence below will show, there is a more reasonable middle ground.
- 35.
R. v. Latimer, 2001 S.C.C. 1 at para 57.
- 36.
R. v. Morgentaler, [1988] 1 S.C.R. 30 at 78 (Dickson CJ, concurring).
- 37.
R. v. Krieger, 2006 S.C.C. 47 at para 27.
- 38.
Roach et al. 2015, 51.
- 39.
Law Reform Commission of Canada 1980.
- 40.
R. v. Sherratt, [1991] 1 S.C.R. 509 at 523–524.
- 41.
Taylor v Louisiana, 419 U.S. 522 (stating “The purpose of a jury is to guard against the exercise of arbitrary power – to make available the common sense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional, or perhaps overconditioned or biased response of a judge.”).
- 42.
Mackenzie v. R., [1996] H.C.A. 35.
- 43.
Mackenzie v. R., [1996] H.C.A. 35.
- 44.
See e.g. Shackleford 2017.
- 45.
Kaplan 2017, 135–137.
- 46.
See e.g. R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Parks, (1993), 84 C.C.C. (3d) 353 (O.N.C.A.).
- 47.
Canadian Charter of Rights and Freedoms, s. 11(f), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.).
- 48.
Blanton v. City of North Las Vegas, 489 U.S. 538 at 543–545 (1989).
- 49.
Criminal Code, R.S.C. 1985, c. C-46, s. 34 (“the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force”).
- 50.
R. v. Latimer, 2001 S.C.C. 1 at paras 28–29; R. v. Ryan, 2013 S.C.C. 3 at para 2.
- 51.
There are other contexts where the resort to resistance is recognized, though short of being viewed as a positive right to resist. For instance, the preamble to the Universal Declaration of Human Rights valourizes the resort to resistance when waged against oppression and tyranny. The Declaration states: ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law […]’. Universal Declaration of Human Rights, U.N. Doc. A/810 at 71 (1948).
- 52.
See Khoday 2015.
- 53.
Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 Article 1F(b) (entered into force 22 April 1954).
- 54.
See e.g. T. v. Secretary of State for the Home Department, [1996] 2 All E.R. 865.
- 55.
Canadian Charter of Rights and Freedoms, s. 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.).
- 56.
R. v. Oakes, [1986] 1 S.C.R. 103 at 138–140. The Court continues to apply this test. See R. v. Lloyd, 2016 S.C.C. 13 at para 49.
- 57.
R. v. Oakes, [1986] 1 S.C.R. 103 at 138–140.
- 58.
R. v. Oakes, [1986] 1 S.C.R. 103 at 138–140.
- 59.
Macdonald 1998, 79.
- 60.
Mégret 2011, 212.
- 61.
Statute of the International Court of Justice, 26 June 1945, 59 Stat. 1031; T.S. 993 (entered into force 24 Oct 1945).
- 62.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, [2015] I.C.J. Rep. 3 at 50.
- 63.
Henckaerts and Doswald-Beck 2005.
- 64.
See e.g. The Paquette Habana, 175 U.S. 677 (1900).
- 65.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 Article 27 (entered into force 27 January 1980).
- 66.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 Article 26 (entered into force 27 January 1980).
- 67.
The Supreme Court of Canada states: “International treaties and conventions are not part of Canadian law unless they have been implemented by statute.” See e.g. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 69.
- 68.
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 70.
- 69.
Mégret 2009, 162.
- 70.
Cassese 2001, 3–4.
- 71.
Mégret 2009, 162.
- 72.
Mégret 2009, 162.
- 73.
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 Article 6 (entered into force 23 March 1976 [ICCPR].
- 74.
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 Article 4(2) (entered into force 23 March 1976).
- 75.
‘Condemnation of nuclear war’, A/RES/38/75, 15 December 1983, http://www.un.org/documents/ga/res/38/a38r075.htm.
- 76.
Human Rights Committee, “General comment No. 14: Article 6 (Right to life)” para 2. HRI/GEN/1/Rev.7 12 May 2004, p. 139.
- 77.
Human Rights Committee, “General comment No. 14: Article 6 (Right to life)” para 2. HRI/GEN/1/Rev.7 12 May 2004, p. 139.
- 78.
Human Rights Committee, “General comment No. 14: Article 6 (Right to life)” para 6. HRI/GEN/1/Rev.7 12 May 2004, p. 139.
- 79.
Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 Article 7 (entered into force 1 July 2002).
- 80.
However, it is worth noting the Human Rights Committee has rejected numerous complaints sent to it by virtue of the first Optional Protocol to the ICCPR. The Optional Protocol permits citizens of Parties to it to make complaints regarding violations of the ICCPR. Many complaints have been made against particular states claiming that their possession and willingness to use nuclear weapons violates their individual right to life. The HRC has rejected a number of these claims on the basis the complainants do not qualify as victims under the Protocol. See Wright 2008.
- 81.
Charter of the United Nations, 26 June 1945, 59 Stat. 1031, T.S. 993 Article 2(4) (entered into force 24 October 1945).
- 82.
Charter of the United Nations, 26 June 1945, 59 Stat. 1031, T.S. 993 Article 51 (entered into force 24 October 1945).
- 83.
Charter of the United Nations, 26 June 1945, 59 Stat. 1031, T.S. 993 Article 42 (entered into force 24 October 1945). Article 42 states: ‘Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’
- 84.
Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] I.C.J. Rep. 226 at 266.
- 85.
Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] I.C.J. Rep. 226 at 266.
- 86.
Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] I.C.J. Rep. 226 at 257.
- 87.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3 Article 48 (entered into force 7 December 1978) [Additional Protocol I].
- 88.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3 Article 51(4)(c) (entered into force 7 December 1978).
- 89.
Report of the United Nations Scientific Committee on the Effects of Atomic Radiation to the General Assembly (2000), http://www.unscear.org/docs/reports/gareport.pdf; Borger 2002; Cassese 2008.
- 90.
Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] I.C.J. Rep. 226 at 257.
- 91.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3 Article 35(1) (entered into force 7 December 1978).
- 92.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3 Article 35(2) (entered into force 7 December 1978).
- 93.
- 94.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 3 Article 55(1) (entered into force 7 December 1978).
- 95.
R. v. Latimer, 2001 S.C.C. 1 at para 31.
- 96.
R. v. Latimer, 2001 S.C.C. 1 at para 31.
- 97.
R. v. Latimer, 2001 S.C.C. 1 at para 31.
- 98.
S. 1 of the Canadian Charter of Rights and Freedoms states: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Canadian Charter of Rights and Freedoms, s. 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter].
- 99.
R. v. Oakes, [1986] 1 S.C.R. 103 at 138.
- 100.
R. v. Oakes, [1986] 1 S.C.R. 103 at 138–139.
- 101.
R. v. Oakes, [1986] 1 S.C.R. 103 at 139.
- 102.
R. v. Oakes, [1986] 1 S.C.R. 103 at 139.
- 103.
Criminal Code, R.S.C. 1985, c. C-46, s. 34.
- 104.
Criminal Code, R.S.C. 1985, c. C-46, s. 34(1)(c).
- 105.
Criminal Code, R.S.C. 1985, c. C-46, s. 34(2).
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Khoday, A. (2019). ‘We Have To Give Up Business As Usual’: Anti-Nuclear Protests and the Construction of a Defence of ‘Legitimate Civil Resistance’. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume IV. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-267-5_4
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