Closing argument that says we are required to protest wars

Closing Argument presented on January 31, 2014, by Judith Bello on trial as of those who protested at Hancock Air Base in New York State on October 25, 2012. Presented by Judy Bello.

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I would like to begin, Judge Gideon, by thanking you for your attention to our unique argument, and support for our learning process with regard to formal court procedures as pro se defendants. I will preface my remarks by saying that we are ever grateful for the right and privilege given to us by the First Amendment to the United States Constitution which says that:

“Congress shall make no law [. . .] abridging the freedom of speech . . . ; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

We would not be here today if this were not the law of the land. I will argue that I went to Hancock Base on the 25th of October, 2012, that as far as I know, we all assembled at Hancock Base on October 25th, 2012 to exercise our right and privilege of free speech to ask our government for redress of grievance; specifically to uphold international laws that prohibit wars of aggression, targeted assassination and the reckless endangerment of civilian populations around the world.

You have heard testimony that Weaponized Drones, including those flown from Hancock Air National Guard Base are on the front line of illegal wars in Afghanistan, Pakistan, Yemen, Somalia and other countries around the world. You have heard testimony that Armed Drones threaten civilian populations in these countries, and contrary to government assertions, kill indiscriminately, leaving a trail of dead civilians in their wake. Even the oft affirmed ‘militant’ target is a civilian in most cases, perhaps in every case depending whether American combatants can be said to be engaged in a legal war. According to Customary International Law and numerous treaties which I will now elaborate, these wars of aggression are illegal.

Therefore, my presence, our presence at Hancock Air National Guard Base is justified under NYS Penal Law 35.05, (Subsection 1):

“Unless otherwise limited by ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: 1) Such conduct is required or authorized by a law or judicial decree…”

In light of Article VI of the US Constitution which says:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

We turn to the following passages from the Nuremberg Judgment which has been designated as a Federal Rules Decision, thereby incorporated into United States Law as well as the United States Army Field Manual on pg 19 under THE COMMON PLAN OR CONSPIRACY AND AGGRESSIVE WAR. The esteemed justices of the Nuremberg Court say:

“. . . War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

And on Pg 42 under VIOLATIONS OF INTERNATIONAL TREATIES, the court continues in the same vein. It says that the waging of an aggressive war is a crime regardless of whether any signed treaty has been violated.

“The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. [ . . . ] This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also “wars in violation of international treaties, agreements or assurances.”

In other words, since we are agreed that prosecuting a war of aggression is a crime, we do not need any further Treaties to justify our verdict. On Pps 44-47 of the Nuremberg Judgment, under THE LAW OF THE CHARTER, the Nuremberg judges state:

“The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.”

The United States must have agreed with this at the time because the Judgment was admitted to US Law as a Federal Rules Decision. They go on to say that it is a matter of justice that a criminal act is understood in reference to the law. So they proceed to name the Treaties on which they have based their judgment. First and foremost, the Kellogg-Briand Treaty, also called The Pact of Paris because the United States and France were the makers of the treaty, and the charter signatories:

“This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of August 27th 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on sixty-three nations, including Germany, Italy and Japan at the outbreak of war in 1939.”

The first two articles of Kellogg-Briand are as follows:

“Article I: The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another.”

“Article II: The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arrive among them, shall never be sought except by pacific means.”

In case we don’t take this seriously, the Nuremberg judges go on to quote Henry L. Stimson, US Secretary of State in 1932, as follows:

“War between nations was renounced by the signatories of the Kellogg-Briand Treaty. This means that it has become throughout practically the entire world … an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be termed violators of this general treaty law….We denounce them as law breakers.”

I have been told that the Kellogg-Briand Treaty is obsolete and irrelevant.  No one pays any attention to it. However the United States has not withdrawn her signature from Kellogg-Briand, as she has, for instance, from the International Court of Justice. Kellogg-Briand is not only a basis for the Nuremberg Judgment, which is accepted as a Federal Rules Decision, but is a direct creation of US diplomacy of which the United States is a charter signatory. Perhaps it should be taken more seriously.

Clearly, Kellogg-Briand does not codify particular penalties for particular variants or degrees of the crime of aggressive war. The Nuremberg judges respond to this concern as follows:

“But it is argued that the pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. [. . . ] In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts.”

Here we have an argument that International Law is a foundation of global justice, and should be enforced through understandings and procedures defined by Customary Law, which has evolved through the consensus of nations over a period of centuries. Armed drones, which are currently a critical tactical method in support of our many wars of aggression, are engaged in the commission of crimes, Crimes Against Peace in so far as they facilitate illegal wars, and War Crimes and Crimes Against Humanity in so far as they facilitate indiscriminate killing of civilians and targeted assassinations which are illegal under US Law. It is a matter of particular concern that United States officials are attempting to change Customary International Law to their advantage by changing the facts on the ground through the introduction of new technologies and social classifications. Terrorists and terrorism supposedly represent a class of individuals who perpetuate a condition not anticipated by Customary International law nor standing Treaties. However, the United States duplicity in both fighting ‘terrorists’ and supporting the same individuals under different names shows that this is not the case. The use of new technologies i.e. armed drones, to ‘terrorize’ civilians while supposedly hunting so called ‘terrorists’ is frivolous, hypocritical and completely illegal. Terrorists and the armed drones that hunt them are social and technical constructs designed to disrupt international law and the social structures on which it is founded. This is clearly succeeding as can be seen by the confusion evidenced in recent statements by the United Nations Rapporteurs on Extrajudicial Killing and on Human Rights and Counterterrorism, and by the conclusions drawn by NGO Reports on Drone attacks released by the Human Rights NGOs this Fall by Amnesty International and Human Rights Watch.

Drones are asserted to be a device that is not constrained by Customary International Law as we have understood it in the past.  The claim is that they are so advanced as to require new laws for new situations. Indeed they say: “Drones can hover quietly at great heights, out of view of those on the ground and out of reach to retaliation by populations without air power and are claimed to be primarily used for surveillance. Since drones aren’t manned, they have not violated the boundaries and borders they have illegally crossed. Since a Drone can be piloted from a faraway location that is not in the clear zone of war, then pilots are not at risk and not liable for their actions. Drones are able to discriminate their targets more effectively than other delivery systems for missiles.”

To me, the above list of special features can be subsumed under a single classification, IMPUNITY. The latter point in particular has clearly proven not to be the case. It takes more than a stable image from 2 miles away to provide meaningful clues to an operator 10,000 miles away. Drones are used to conduct illegal wars invisibly. Even so, new laws aren’t necessary to constrain armed drones. What is necessary is that their owners and users be called to obey the existing laws. In fact, International Law has addressed this very situation more than 100 years ago. Initially, the Martens Clause, as it is called, was introduced into the prologue of Hague Convention II in 1899, later the substance was incorporated into the Hague Convention IV in 1907. The Martens Clause states:

“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents (we would say civilians and combatants) remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”

In other words, you cannot create an instrument that smashes the existing rules and boundaries and then claim that new boundaries must be drawn around it. Rather, the use of new technologies must be required to remain within the boundaries of existing law until such time as the international community can come to a consensus on a new structure of law to accommodate them. Then their use can be expanded into the new legal space. We must act under the empire of international law rather than under the law of the empire.

——– Conclusion —————

We cannot ignore the fact that these laws are often broken; often restated in new language. It seems to me that war is much like an addiction, deadly and difficult to end. We vow to quit, then fail, and recover and relapse again and again. This does not mean that we should cease trying. Every  treaty and promise to repudiate the deadly violence of war, and restrain the instruments that make it easy for us to engage in war, must be held up and honored, over and over again until justice prevails, and we are at last free to live as civilized human beings in peace and security with other individuals and other nations. That is why I was at Hancock Base on October 25, 2012 and that is why I am here today. I am not asking you, Judge Gideon, to try defendants under these laws as the Nuremberg Judges were required to do. That is not your job. What I am asking is that you acknowledge our obligations under these laws, along with my obligation and privilege to uphold them under the Constitution and acquit me and my companions of the current charges under Penal Code 35.05 which says that we may justify an act that would otherwise constitute an offense when it is authorized by a law or judicial decree.

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Many thanks to Popular Resistance for presenting thisclosing argument.