‘We Have To Give Up Business As Usual’: Anti-Nuclear Protests and the Construction of a Defence of ‘Legitimate Civil Resistance’

  • Amar Khoday


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.


Civil Resistance Criminal Law Defences Human Rights International Humanitarian Law Jury Nullification Necessity Protests 


  1. Berger B (2002) A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity, 39 Alberta Law Review, 843–863Google Scholar
  2. Borger J (2002) Cancer linked to Cold War Bomb Tests. The Guardian.
  3. Borger J (2018) US Wasting Billions On Nuclear Bombs That Serve No Purpose and Are Security Liability – Experts. The Guardian.
  4. Cassese A (2001) International Law. Oxford University Press, New YorkGoogle Scholar
  5. Cassese A (2008) Weapons Causing Unnecessary Suffering: Are They Prohibited? In: Gaeta P, Zappalá S (eds) The Human Dimension of International Law: Selected Papers of Antonio Cassese. Oxford University Press, New York, pp 192–217CrossRefGoogle Scholar
  6. Chávez A (2017) Congress Asks If Donald Trump Really Can Blow The World Up Without Restraints. The Intercept.
  7. Eiger L (2017) Trident Three: Guilty. Works in Progress.
  8. Fisher M (2018) Hawaii False Alarm Hints at Thin Line Between Mishap and Nuclear War. New York Times.
  9. Hasan M (2017) U.S. Generals Might Stop Trump From An Illegal Strike – But Who Will Save Us From A Legal One. The Intercept.
  10. Henckaerts J-M, Doswald-Beck L (2005) Customary International Humanitarian Law: Volume I: Rules. Cambridge University Press, New YorkGoogle Scholar
  11. Hoffheimer M (2007) Codifying Necessity: Legislative Resistance to Enacting Choice-of-Evils Defenses to Criminal Liability. 82 Tulane Law Review, 191–244Google Scholar
  12. Jha A (2006) Climate threat from nuclear bombs. The Guardian.
  13. Kaplan W (2017) Why Dissent Matters: Because Some People See Things the Rest of Us Miss. McGill-Queen’s Press, MontrealGoogle Scholar
  14. Khoday A (2015) Tough on Terror, Short on Nuance: Identifying the Use of Force as a Basis for Excluding Resisters Seeking Refugee Status. 4 Canadian Journal of Human Rights, 179–209Google Scholar
  15. Khoday A (2016) Resisting Criminal Organizations: Reconceptualizing the “Political” in International Refugee Law. 60 McGill Law Journal, 461–509CrossRefGoogle Scholar
  16. Law Reform Commission of Canada (1980) Working Paper 27. The Jury in Criminal TrialsGoogle Scholar
  17. Lippman M (1992) Civil Resistance: Revitalizing International Law in the Nuclear Age. 13 Whittier Law Review, 17–105Google Scholar
  18. Macdonald J (2017) The Environmental Impact of Nuclear War. JSTOR Daily.
  19. Macdonald R (1998) Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism. 15 Arizona Journal of International and Comparative Law, 69–92Google Scholar
  20. McCoy D (2017) Even a ‘minor’ nuclear war would be an ecological disaster felt throughout the world. The Conversation.
  21. Mégret F (2009) Civil Disobedience and International Law: Sketch for a Theoretical Argument. 46 Canadian Yearbook of International Law, 143–192Google Scholar
  22. Mégret F (2011) Not “Lambs to the Slaughter”: A Program for Resistance to Genocidal Law. In: Provost R, Akhavan P (eds) Confronting Genocide. Springer, New York, pp 195–237Google Scholar
  23. Merry S (1998) Law, Culture, and Cultural Appropriation. 10 Yale Journal of Law & The Humanities, 575–603Google Scholar
  24. Quigley W (2003) The Necessity Defense in Civil Disobedience Cases: Bring in the Jury. 38 New England Law Review, 3–72Google Scholar
  25. Roach K et al (2015) Criminal Law and Procedure: Cases and Materials, 11th edn. Emond Montgomery, TorontoGoogle Scholar
  26. Schlosser E (2015) Break-in at Y-12: How a handful of pacifists and nuns exposed the vulnerability of America’s nuclear-weapons sites. The New Yorker.Google Scholar
  27. Schwartz J (2018) GOP Senator Says Trump Is Ready To Start War With North Korea, Which Would be ‘One Of The Worst Catastrophic Events In History’. The Intercept.
  28. Shackleford S (2017) Jurors Convict Man for Telling Jurors About Jury Nullification.
  29. Sharp G (2012) Sharp’s Dictionary of Power and Struggle: Language of Civil Resistance in Conflicts. Oxford University Press, New YorkGoogle Scholar
  30. Stanford University Freeman Spogli Institute for International Studies (2017) Q&A with Paul N. Edwards: How nuclear war would affect the world climate and human health.
  31. Vaughan A (2018) Search Restarts For Area Willing To Host Highly Radioactive UK Waste. The Guardian,
  32. Wright T (2008) Do Nuclear Weapons Violate the Right to Life under International Law? 3 Australian Journal of Peace Studies,

Copyright information

© T.M.C. Asser press and the authors 2019

Authors and Affiliations

  1. 1.Faculty of LawUniversity of ManitobaWinnipegCanada

Personalised recommendations