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Federal Prosecutor Calls Illegality of US Nuclear Bombs in Germany an “Insignificant fact”

Nukewatch Quarterly Winter 2021-2022

On Oct. 12, 2021 Sigrid Eckert-Hoßbach, Jürgen “Hops” Hoßbach, Frits ter Kuile, and Johanna Adickes were on trial in Koblenz, Germany charged with trespassing and damage to a fence during an 18-person go-in protest at the Büchel air base in July 2018. The base is the staging ground for 20 US hydrogen bombs, called B61s, kept ready for German Tornado fighter jets to use in attacks against Russia.

The four nuclear weapons resisters had asked the regional court judge to allow expert witnesses to testify about the status of the nuclear weapons under international treaties, and about the risk of accidental nuclear attacks. The senior public prosecutor in the case objected in writing, claiming that even if the “policy” of stationing US H-bombs in Germany was a violation of international law, the request for experts should be rejected “due to the insignificance of the evidentiary fact.”

In a September 21 filing, the prosecutor wrote, “The fact that … the nuclear weapons policy of the German government is contrary to international law can be assumed to be true.”

This written acknowledgement by a federal prosecutor of the validity of the resisters’ foremost complaint about Germany’s “nuclear sharing” came as a shocking surprise. But the letter went on to claim, without legal analysis, that a justification defense based on international law “cannot be derived from this.”

Expert testimony was excluded from the trial and the four defendants were found guilty.

This Dec. 9, Nukewatch staffer John LaForge will be in the same courtroom on similar charges and has also asked the court to hear expert testimony. Although unlikely to be allowed, Dr. Francis Boyle of the University of Illinois Law School has agreed to testify. He wrote to Nukewatch October 28 that, nuclear weapons resisters have no “criminal intent” — an element the government has to prove. “My testimony will show that planning and preparation of nuclear attacks is ongoing criminal activity under international law. You have no culpability here because you were acting to prevent the ongoing commission of international crimes,” Prof. Boyle wrote.

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Novel Appeal Filed with the European Court of Human Rights in Nuclear Weapons Protest Case

Nukewatch Quarterly Winter 2021-2022
By John LaForge

Two nuclear weapons opponents have filed a novel complaint with the European Court of Human Rights (ECHR) in Strasberg, France, alleging that German courts have unfairly refused to consider defense testimony from expert witnesses regarding the outlaw status of deploying US nuclear weapons in Germany.

On Nov. 11, 2021, Stefanie Augustin of Dortmund and Marion Küpker of Hamburg submitted the appeal through their lawyer Anna Busl. The ECHR will now decide whether to review the case and issue a ruling, or to deny it further consideration.

On Sunday, July 15, 2018, Augustin and Küpker were among eighteen people from four different countries who entered Germany’s Büchel air base, near Cochem, where approximately 20 US nuclear bombs are kept at the ready by the US Air Force’s 702nd Munitions Support Squadron. Seven of the activists came from the United States, six from Germany, four from The Netherlands, and one from England. In five groups, they clipped fences to enter the base and once inside some climbed onto a hangar where nuclear weapons may have been stored, and others read aloud to soldiers a warning about military and civilian laws that prohibit planning and preparing attacks using nuclear weapons.
Augustin said: “I took part in this action because it is the only way for me as a citizen to be able to take these state violations of the law to court. This includes the practice of Germany’s criminal nuclear participation in NATO. Since we have exhausted all national court appeals with our 14th constitutional complaint — which in our case was again rejected by the Federal Constitutional Court — we have appealed to the European Court of Human Rights for the first time.”

Küpker (a 2019 Aachen Peace Prize winner for the campaign “Büchel is Everywhere: Nuclear Weapons-Free Now!”) added: “International law is superior to federal German law. The courts should have examined whether we actually had sufficient and urgent reasons to draw attention to this state of emergency with such an action. Our requests to provide expert witness testimony were simply rejected by the courts. However, the courts are ordinarily obliged to examine questions of international and constitutional law. So the appeal is based on our ‘right to be heard’ under Article 6, Para. 1 of the European Convention on Human Rights, and on our ‘right to life’ under the convention’s to Art. 2, Para. 1 having been violated in the local, regional and constitutional courts.”

The appellants argue further that the deployed US nuclear weapons violate the public’s “right to life” and thereby the European Convention, because the perpetual threat to use Büchel’s 20 US H-bombs in attacks launched by Germany’s Tornado jet fighters is routinely practiced in exercises including October’s “Steadfast Noon” rehearsal. The US bombs hang “like the ‘sword of Damocles,’” Küpker said, “because the credible threat of nuclear war is continuous, raises the chances of a global nuclear war, and makes Germany a target.”

Over the past two years, about 50 prosecutions for nonviolent “go-ins” at Büchel base have taken place in Cochem district court and in the Koblenz regional court. (Trial reports can be found here: www.buechel-atombombenfrei.de). And over the past 25 years, 14 appeals by nuclear weapons critics to Germany’s highest court, the Constitutional Court in Karlsruhe, have been rejected.

The July 15, 2018 action, and others in 2017 and 2019, were organized jointly by Nonviolent Action to Abolish Nuclear Weapons in Germany (www.gaaa.org) and the US organization Nukewatch. The Campaign Council of Germany’s nationwide support group “Abolish Nuclear Weapons – Start with Us!” — made up of over 70 organizations (www.atomwaffenfrei.de) — has declared its support this first-ever anti-nuclear movement appeal to the ECHR.

So, after decades of protests and resistance to the US nuclear weapons in Germany (there were as many as 7,000 during the Cold War), the appeal to the ECHR provides its judges a rare opportunity. Without having to condemn the United States’ hubris, hypocrisy, or destabilizing nuclear threat-mongering, the judges can simply reaffirm a defendant’s right to a fair trial court — a court that is unbiased enough that defendants are allowed to present expert witness testimony — and then urge the German courts to listen to it.

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Proposed US/UK Nuclear-Powered Submarines for Australia Jeopardize Health, and Escalate an Arms Race No One Can Win

Nukewatch Quarterly Winter 2021-2022

A joint statement, excerpted, by the International Physicians for the Prevention of Nuclear War, the Medical Association for Prevention of War Australia, Medact UK, and Physicians for Social Responsibility USA, Sept. 21, 2021.

A total of eight nuclear-powered submarines sank because of accidents at sea between 1963 and 2003. Pictured is the Soviet submarine K-159, which sank on Aug. 30, 2003 during towing to dismantling, leaving nine dead. Photo: Bellona Foundation

Physicians in the countries involved in the proposal announced on September 16 — for Australia to acquire nuclear-powered submarines with UK and US assistance — are concerned this plan will jeopardize global health and security. Under this proposal, Australia would become the seventh country to use nuclear propulsion for its military vessels, and the first state to do so which does not possess nuclear weapons, or nuclear power reactors. These submarines are to be armed with sophisticated long-range missiles including US Tomahawk cruise missiles. These submarines would increase tensions and militarization across Asia and the Pacific region, fuel an arms race, and risk deepening a new cold war involving China.

The wrong decision at the wrong time

Humanity is in the midst of a major pandemic, and facing twin existential threats of dire urgency — global heating and the growing danger of nuclear war….
If ever there was a time to build goodwill and focus on cooperation to complex global problems rather than escalate military confrontation, that time is now. Our [countries] should focus not on escalating a new arms race with China, but on building peaceful cooperation with the government of the world’s most populous to address urgent shared threats.
Instead, this plan will raise tensions, make cooperation more difficult, drive proliferation of ever more destructive weapons, divert vast resources needed to improve health and stabilize our climate, and increase the risks of … armed conflict between the world’s most heavily armed states, risking nuclear escalation in which there can be no winners.

Spreading nuclear bomb fuel

… All UK and US nuclear-powered submarines use HEU [highly-enriched uranium] as fuel, which is directly usable in nuclear weapons…. Indeed their current naval reactor fuel is enriched to 93% and was originally produced for use in nuclear warheads. They have resisted and delayed efforts to convert their naval reactors to much less proliferation-prone, low-enriched uranium fuel, as France and China have done….
Precisely because of the proliferation dangers of naval reactor fuel, the US has previously gone to considerable lengths to thwart the spread of naval reactors, such as in the 1980s blocking Canada from buying nuclear attack submarines from France and the UK….
The quantities of HEU involved are large. As Sebastien Philippe from Princeton University has estimated, a fleet of between 6 and 12 nuclear submarines as proposed, operated for about 30 years, will require between 3 and 6 tons of HEU. The International Atomic Energy Agency stipulates that [55 lbs] of HEU would enable a nuclear weapon, even though US nuclear weapons are known to contain an average of only 12 kg of HEU.
So HEU fuel for the proposed Australian submarines would involve 120 to 240 times the amount of HEU as the IAEA stipulates is sufficient to build a nuclear weapon, and it could be out of international safeguards for decades. Philippe has aptly characterized this as “a terrible decision for the non-proliferation regime.” It discredits all three nations’ claims to support a treaty curbing fissile materials, and would make such a treaty harder to verify. …
This proposal needs careful independent scrutiny and strong new safeguard provisions to ensure Australia fulfills its obligations under both the NPT and the South Pacific Nuclear-Free Zone Treaty….
The UK announcement in March of a planned 40% increase in its nuclear arsenal [violates] its NPT obligations, as the UN Secretary-General has stated. The UK and US are modernizing their nuclear arsenals, both in [violation] of their 51-year-old legally binding NPT commitment to disarm….

Radioactive risk

Proliferation of submarines … with lifespans of several decades that are fueled by weapons-grade HEU will encourage uranium enrichment, wider use and storage of HEU, and will set back and make more difficult control and elimination of fissile materials.
Nuclear reactors on ships and submarines have been involved in numerous accidents. The risks of accident or attack causing release of radioactive material, combined with the targeting by adversaries of such vessels, including while they are in port, are why many cities around the world sensibly [forbid] visits of such vessels to their harbors….
Australia’s lack of nuclear scientific, engineering, management and regulatory capacity and experience will inevitably mean that more is likely to go wrong building and operating nuclear submarines. If something does go wrong with one of its nuclear submarines, the likelihood of it being quickly and effectively managed is reduced, and the risk of radioactive release in a port city or into the marine or coastal environment is increased….
These contribute substantially to the already widespread radioactive pollution resulting from naval reactors. The most recently reported fatal accident was a fire in a Russian nuclear submarine in 2019, that killed 14 people.
The radioactive waste from reactors poses a difficult and expensive problem: to manage health and environmental hazards for geological time periods. The governments involved in this proposal have been silent about disposal of the high- and intermediate level waste that would be generated. Despite many flawed and failed attempts at interim storage, Australia has no current plan for disposal of the much smaller amount of its … radioactive waste.

A step toward reactors and nuclear weapons?

Already, in the wake of the announced plans, there are mounting calls in Australia, including from some government MPs, for Australia to embrace nuclear power as well. Throughout the 1950s and 1960s, Australia made active plans and preparations to acquire nuclear weapons. … Twenty nuclear weapons could be built from the amount of HEU fueling the nuclear reactor of each planned submarine.

The way forward

… Rather than escalating a nuclear-propelled new cold war, both the UK and US should make their people and the world truly safer by pursuing a verifiable and binding agreement with other nuclear-armed states to eliminate their nuclear arsenals. They should welcome and work towards joining the 2017 UN Treaty on the Prohibition of Nuclear Weapons (TPNW), which provides the only internationally agreed, treaty-codified framework for the elimination of nuclear weapons. Naval nuclear propulsion, especially with HEU, should be phased out.
…Contrary to its support for the treaties prohibiting all other major types of inhumane and indiscriminate weapons and weapons of mass destruction — biological and chemical weapons, landmines, and cluster munitions — Australia opposes the TPNW.
The best way for Australia to provide surety that any nuclear-powered submarines would not be a stepping stone towards acquiring nuclear weapons, nor have any role in the possible use of nuclear weapons, is to join the TPNW. If it continues to refuse to do so, such concerns will remain well justified.
If Australia proceeds to acquire nuclear submarines, it should insist on LEU fuel, implement stringent safeguards, the submarines should be configured so that they cannot carry nuclear weapons, and nothing about their construction or operation should impede Australia joining the TPNW.
— For the full joint statement with signatures, see: https://www.ippnw.org/wp-content/uploads/2021/09/IPPNW-statement-Nuclear-Subs-letterhead-21.9.21.pdf.
— International Physicians for the Prevention of Nuclear War, was awarded the 1985 Nobel Peace Prize. In 2007, MAPW and IPPNW launched the International Campaign to Abolish Nuclear Weapons, which was awarded the 2017 Nobel Peace Prize.

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“Temporary” Storage Sites for High-Level Radioactive Waste from US Reactors Face Challenges

Nukewatch Quarterly Winter 2021-2022
By Leona Morgan

The New Year will begin with one proposed “temporary” storage facility for high-level radioactive waste being fully-licensed, and another not far behind. The two “Consolidated Interim Storage” (CIS) sites are about 40 miles apart in the Desert Southwest: 1) the 40,000 metric ton Interim Storage Partners or ISP facility (also known as Waste Control Specialists or WCS) in Texas; and 2) Holtec Inc.’s 173,600 metric ton site — the world’s largest — in New Mexico.
The US Nuclear Regulatory Commission (NRC) approved ISP’s license application in September 2021. Don Hancock, Director of the Southwest Research and Information Center, expects that NRC will issue a license to Holtec in 2022. Hancock is convinced “that the NRC will issue these two licenses,” but, he explains, there are additional obstacles to be overcome, such as economic, political, and legal challenges. Therefore “the license approval is not the final decision.”
Both CIS license applications have been challenged in the District of Columbia Court of Appeals by regional groups, national environmental organizations, and one oil and gas company. In addition, the State of Texas is challenging ISP and opposes Holtec, while the State of New Mexico is fighting both Holtec and ISP.
Terry Lodge, an attorney representing community intervenors in both cases, estimates that oral arguments for ISP may be scheduled for late Summer 2022, with a final decision in early 2023. The case against Holtec has no hearings scheduled, but may move ahead if NRC issues the license.
CIS is a national issue, since opening a site would launch thousands of cross-country shipments of the deadly waste, so 2022 must be a year of anti-CIS action.
— Leona Morgan works with the Nuclear Issues Study Group in New Mexico.

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US Peace Activist Convicted in Germany for Nuclear Weapons Protests

The go-in actions from July 15, 2018

 

HAMBURG – Long-time Nukewatch co-director John LaForge was convicted December 9 in Regional Court in Koblenz, Germany on two charges of trespassing, following a 4.5-hour appeal hearing stemming from two 2018 protests against the U.S. nuclear weapons stationed Germany’s Büchel air force base.

The Koblenz hearing was an appeal of two May 31, 2021 trespass convictions in Cochem District Court for “go-in” actions at the base during protests July 15, and August 6, 2018. Koblenz Regional Court Judge _____ van den Bosh ruled that LaForge’s affirmative defense of “crime prevention” was inadmissible and that such a defense would better be heard by a higher court. (German judge’s first names are not made public.) She ordered the long-time co-director of the nuclear watchdog organization Nukewatch (nukewatchinfo.org) to pay a fine of 600 Euros or about $680.00.

Judge van der Bosh denied motions from defense attorney Anna Busl to allow testimony from three experts regarding the status of nuclear weapons. Retired German judge Bernd Hahnfeld, a former board chair of the International Association of Lawyers Against Nuclear Arms, and University of Trier Professor of Computer Science Karl-Hans Bläsius both arrived at court for the hearing. Judge Hahnfeld planned to explain that the 1970 Nonproliferation Treaty and the 1990 Two-Plus-Four Treaty (on German reunification) both prohibit the stationing of U.S. nuclear weapons in Germany; and Prof. Bläsius would have testified about the growing risk of computer-driven accidental nuclear war. Univ. of Illinois Professor of Law Francis A. Boyle intended to explain via video conference from Champaign, Ill. the criminality of ongoing thermonuclear attack threats known as “deterrence.”

August 6, 2018, LaForge and Susan Crane of Redwood City, California

As is the practice in German criminal court, LaForge was able to testify at length and uninterrupted. With a German translator translating for the court, he spoke for 25/50 minutes, saying in part, “The ghastly effects of hydrogen bombs are well-known to be massacres caused by the weapons’ uncontrollable, indiscriminate, city-size blast destruction, ferocious mass fires, vastly widespread radiation burns, radiation-related diseases, and genetic damage. Deliberately planning to cause these effects is prohibited by international humanitarian law, the Nuremberg Charter, the Nuremberg Tribunal, and the Nuremberg Principles all of which are binding on Germany and the United States.”

By way of analogy LaForge said, “A fire fighter who breaks a door and rushes into a burning building to save someone is not charged with trespass. But what of a fire not yet burning but one that is planned, rehearsed, premeditated, and intentionally set to ignite with the heat, blast and radiation of a thousand suns? What if the premeditated fire would incinerate a city of 10 million people, or 20 cities — one each for the 20 US hydrogen bombs at Büchel?”

Before the hearing he said, “I participated in these actions because they are the only way to have the criminal status of nuclear weapons considered by the courts,” LaForge said. “The public wants these bombs out of Germany. But nuclear weapons’ programs are anti-democratic, controlled by presidential decree that ignore Congress and parliaments. Only a court of law can order them ousted.”

Marion Küpker of Hamburg, an anti-nuclear campaigner with Nonviolent Action to Abolish Nuclear Weapons (www.gaaa.org) and coordinator of the international action camps at the base, said, “In the last two years, about 50 court cases involving dozens of nuclear weapons protesters have taken place in Cochem and Koblenz for nonviolent civil disobedience actions at the Büchel air base.”

Büchel air base uses at least 20 U.S. thermonuclear gravity bombs known as B61s –like six other European NATO bases — under a controversial US/NATO program known as “nuclear sharing.” The U.S. Air Force’s 702nd Munitions Support Squadron maintains the U.S. bombs in readiness for German PA 200 Tornado jet fighter/bomber crews. According to Hans Kristensen of the Federation of American Scientists, “The Belgian, Dutch, German, and Italian air forces are assigned nuclear strike missions with U.S. nuclear weapons.”* Küpker said protesters continue their 25-year-long campaign demanding the ouster of the U.S. bombs and a cancellation of US plans to replace the current B61-3s and -4s with a new “B61-12.” (Full disclosure: Küpker and LaForge were married in August 2020.)

At Nukewatch, LaForge helped coordinate delegations of U.S. peace activists to international protest camps at the nuclear weapons base in 2017, 2018, and 2019. He is a co-recipient of the 2004 US Peace and Justice Studies Association’s Social Courage Award, who has served over 54 months in jail and prison for nonviolent protests.

*“US Nuclear Forces 2021,” Bulletin of the Atomic Scientists, https://thebulletin.org/premium/2021-01/nuclear-notebook-united-states-nuclear-weapons-2021/.

 

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