|It is interesting - as a point of law, the question of whether you can claim to be attempting to avert loss of life or damage to property by depriving a government of the use of its military tools can't be divorced from whether those tools are to be put to a legal use, though, surely? So, the 1971 Criminal Damage Act, which depends on allowing property damage to prevent somebody else damaging property illegally, and the 1967 Criminal Law Act, which allows it to prevent a crime, which as I understand it were the lawful excuses the defence was employing here, depend on the purposes the planes were being put to being illegal. Which leads on to:|
here have to be some nasty weapons/dubious motives at play – in this case cluster bombs and uranium tipped weapons
The thing here being that, in essence, you'd be creating a class of conventional weapon the use of which would always be illegal regardless of the legality of the conflict in which they were being used, and illegal in a civil court as well as under international law. Which sounds to me like a very good idea, but I don't think anyone's going to go for.
If they are acquitted, and the legality of the war is not a consideration, things basically go a bit mad. Let's say a protestor is arrested while approaching an airfield with a pair of bolt cutters. Is the arrest correct, as he was trespassing on private property? Is the arrest actually assault, as he is on a legal mission to prevent unlawful damage? How about if the RAF then claim that they thought he was heading for a plane laden with kosher, "legal" weaponry?
Ultimately, what would need to happen would be a legal acknowledgement that the war was not sanctioned by UN Resolution 1441, and thus that any attack on Iraq was in contravention of international law. The Federal Administrative Court in Germany appears to have done that, as reported here, in a report on a German Major who refused to follow orders that he felt were supportive of the war in Iraq, which he felt to be an illegal war. However, it appears that the Constitional Court, which as far as I understand German law is the highest court in the land but restricted to consideration of constitutional issues, decided that the Major should be restored to his rank and the complaint against him dropped not because the war was illegal on a level relating to the German Constitution's prohibition against participating in wars of aggression (Article 26), but because the refusal was made in good faith and in exceptional circumstances (that is, in the circumstance of a war that was adjudged to be a war of aggression by the Major and ultimately by the Federal Administrative Court). As far as I can tell, that creates an odd situation in which it is all right for the German state to provide support to countries engaged in the war, but any member of the military who does not wish to join in can refuse, and that is all right also.
Could anyone clarify that for me?