Nukewatch Quarterly Spring 2022
By John LaForge
In recent court cases in Germany, several nuclear weapons abolitionists charged with trespassing, etc. at the nuclear-armed Büchel air force base have presented a defense of “crime prevention.” The defense is based in large part on the analysis of nuclear weapons presented by Professor Francis A. Boyle in his book, The Criminality of Nuclear Deterrence (Clarity Press 2002).
In a nutshell, the argument is that because the air base’s plans and preparations for attacks with the weapons (known as nuclear deterrence) amount to a criminal conspiracy to commit atrocities with indiscriminate weapons of mass destruction, nonviolent offenses committed in order to prevent that crime are excusable.
German courts that have heard protest cases stemming from the civil resistance to oust the U.S. weapons from Germany have ruled that the defense is not applicable. The judges have refused to hear expert witness testimony that could substantiate the defense, so the argument has gone unexamined by them. The local court nearest the base, in Cochem, the regional or appeal court in Koblenz, and the Constitutional Court (Germany’s highest) in Karlsruhe have all ruled that the stationing of U.S. nuclear weapons in Germany (and their threatened use) is “legalized” by various, mostly secret “nuclear sharing agreements” between Berlin and Washington, DC. These court rulings ignore the Treaty on the Nonproliferation of Nuclear Weapons which explicitly prohibits nuclear weapons from being transferred from one country to another, and raise appeal issues that have been argued in several cases.
Marion Küpker and Stefanie Augustine both of Germany have appealed their trespass convictions to the European Court of Human Rights. Sometimes called the “Strasbourg court” after its location in France, the ECHR is the high court of the Council of Europe and it interprets the European Convention on Human Rights. The ECHR has not yet ruled on whether to hear this appeal.
If the ECHR in Strasbourg decides not to consider the appeal by Marion and Stefanie, several other similarly situated defendants, including Susan Crane of Redwood City, California and me, also intend to appeal to the ECHR.
Susan is scheduled for an appeal hearing at Regional Court in Koblenz this May 31, where she will contest several trespass convictions that have been consolidated into one case. The trespass charges against Susan and me stem from nonviolent “go-in” actions taken at the Büchel air base over the last few years.
An appeal hearing for me in Koblenz last December 9, resulted in conviction after the court refused to hear expert witness testimony regarding international law and the criminal status of U.S. nuclear weapons and war policy in Germany.
Defense attorney Anna Busl of Bonn presented detailed motions to the court explaining the need for the experts I wanted to call. But the judge ruled that there was no need to hear from the witnesses. An appeal brief contesting this conviction will be filed with the Constitutional Court by April 24.