Early in the morning
of 17 December 2001, a group of intruders
penetrated the area inside the perimeter
fence surrounding the Lucas Heights nuclear
plant, Australia’s only reactor. The plant’s
operator, the Australian Nuclear Science
and Technology Organisation (ANSTO), had
only recently announced that security around
the facility had been upgraded, in the wake
of the terrorist attacks of September 11th.
It was an important moment to reassure the
public, as ANSTO was in the process of applying
for a permit to construct a second reactor
on the site.
The intruders arrived
in two groups. The first entered the facility
via a fence at the rear, while the second
group wandered in through the front gate,
unopposed by the two security guards on
duty. Once inside the secure zone, they
stopped and milled around, cutting an amusing
figure in their bumbling radioactive waste
barrel outfits. Meanwhile, the first group
had scaled one of the buildings on the site
and was unfurling a banner that read: “Nuclear.
Never safe!”
Like many Greenpeace
actions, it was a confrontational act designed
to tell the public an important story through
a simple, compelling image. And like many
Greenpeace actions, it ended when the police
arrived, rounding up and arresting 46 activists
for trespass.
How should the law deal
with non-violent direct actions which seek
to raise the level and quality of public
debate, but involve a breach of the law?
To those of reactionary inclinations, law-breaking
exists in only one variety, and police and
prosecutors should make no allowances for
“self-righteous” conduct. Judging by comments
on the Greenpeace website, some people even
consider an arrest conclusive evidence of
guilt, forgetting that, as one wisecrack
put it, “it’s not illegal to get arrested”.
The more interesting question, however,
is this: should breaking the law always
be illegal?
Civil disobedience and
non-violent direct action (NVDA) have a
long and honourable history in democracies.
Because it is usually a gaping hole in the
public consciousness which drives individuals
to risk their freedom by taking action,
activists often face scorn, and an appreciation
of the justification for their deeds does
not emerge until much later, once public
consciousness has matured –often thanks
in part to the debate kick-started by the
activist. There is no better illustration
than Rosa Parks, whose refusal to give up
her seat on an Alabama bus to make room
for a white passenger was considered an
arrestable offence by many ‘right-thinking
people’ (and the police) at the time, but
is now remembered as a courageous symbolic
act which helped launch the modern Civil
Rights Movement.
Should activists then
enjoy a licence to break the law, because
the importance of their message may trump
the importance of law enforcement? No, of
course not. What makes civil disobedience
or NVDA compelling is the courage of the
individual to follow his or her conscience
over the law, and then to submit to the
judgment of society, arguing the justification
for the act but accepting its consequences
in law.
Two Greenpeace activists
who exemplify this spirit are Junichi Sato
and Toru Suzuki, the “Tokyo Two”, who in
2008 entered a mail depot to intercept a
box of whale meat being smuggled off Japan’s
whaling fleet, disguised as personal luggage.
The box, one of several sent by one sailor
and labelled as containing “cardboard”,
confirmed a whistleblower’s account of large-scale
embezzlement of prime cuts. Crewmembers
of the fleet were selling the meat, ‘by-product’
of Japan’s ‘scientific research’, on to
shops and restaurants for personal gain,
apparently with tacit approval of officials
who received their own share of the spoils.
Sato and Suzuki’s investigation
exposed a painful scandal in an industry
which arouses strong nationalist passion
in Japan. Their act turned them into pariahs
and provoked politically motivated charges
of theft and trespass. But over the course
of the two-year trial, in which Sato and
Suzuki admitted to all factual aspects of
the charges but humbly and articulately
explained the reasons and justification
for their act, public perception has changed
and the mainstream press have started to
question the erstwhile sacrosanct whaling
programme. While the Tokyo Two were convicted
to a 12-month suspended sentence last September,
the Fisheries Agency recently admitted to
and apologised for part of the scandal,
raising hope that the sentence may be reduced
on appeal.
Conscientious protestors
and activists should not expect immunity
from the laws they break. This does not
mean, however, that their motives and the
contribution they make to public debate
should be disregarded. In some cases, society’s
interest in seeing its laws challenged and
broken is greater than its interest in seeing
them enforced.
When the 46 activists
penetrated the Lucas Heights reactor site,
they demonstrated the woefully inadequate
security arrangements in a graphic and indisputable
way. “It was not the case”, observed Judge
Latham of the District Court of New South
Wales, “that the objectives and motives
of the defendants could have been achieved
by demonstrating at the front gate.” The
activists had believed their actions justified
in bringing a matter of serious concern
to the attention of the Australian public.
Finding that “the right to protest and the
right to express publicly one’s view, albeit
by direct action, is one which is to be
valued and protected in the context of a
modern democracy”, the judge dismissed the
charges without conviction.
The Kingsnorth coal
power station. © Greenpeace / Will
RoseIn 2008, six other Greenpeace activists
went on trial in Britain. They had scaled
the 200m smokestack of the Kingsnorth power
station in Kent and painted a slogan at
its summit, in protest at government plants
to permit construction of a coal-fired replacement
for the aging plant. What may have seemed
at the outset as a cut-and-dried case of
criminal damage was put in a different light
by the defence’s expert witnesses. Professor
James Hansen, often called the world's leading
climate scientist, testified that the 20,000
tonnes of carbon dioxide emitted daily by
Kingsnorth could be responsible for the
extinction of up to 400 species. The jury
further heard that the plant’s emissions
contributed to a risk of future flooding
of low-lying areas around the globe, including
in Kent itself. Recognising the token nature
of the damage done by the activists in comparison
with the harm threatened by the government’s
plans, the jury accepted that the defendants
had a ‘lawful excuse’ to make a bold statement
against them. It was the same defence which
would permit breaking down a door in order
to put out a fire. In 2009, the plan to
build the replacement plant was postponed,
and a year later, it was shelved indefinitely.
In some cases, as the
courts recognise, breaking the law is rightly
not illegal.
Daniel
Simons is a legal counsel at Greenpeace
International, and was part of the team
handling the Tokyo Two trial.
