Irish Jury Acquits Plane-Bashing Peace Protesters – The Limits of Criminal Law?

This week in Ireland, five peace protesters were aquitted by jury verdict of the charge of criminal damage to property. In 2003, the protesters forced their way into an airplane hanger at Shannon airport and attacked a US Airforce transport plane, bashing the airplane’s nose and causing $2.5 million of damage.

The Dublin Criminal Circuit Court ruled July 25 that the five — two Irish, one Scot, one American and one Australian — were not guilty of causing damage to U.S. government property and the Aer Rianta doors at the airport. The five admitted in the court that they had forced their way into the hangar and had attacked the plane, but said their actions were legally excusable because they were trying to protect lives and property in Iraq, which the U.S. invaded the following month. After attacking the nose cone and windows of the plane with hammers and paint, the five prayed. They offered no resistance when arrested.

Source. Further news reports are here, here, and here.

There are several things going on here, of course. For one thing, the Irish consider themselves neutral and there is a strong popluar resentment of U.S. military airplanes refueling in Shannon on their way to Iraq or transporting or “rendering” prisoners. The jury expressed, according a statement read by the protesters after their acquittal, this resentment by refusing to condem the act as criminal:

The jury is the conscience of the community, chosen randomly from Irish society. The conscience of the community has spoken. The government has no popular mandate in providing the civilian Shannon Airport to service the US war machine in its illegal invasion and occupation of Iraq.

The interesting legal-theory question is how and why peace protests could excuse a criminal-damages charge. I wouldn’t be happy if a protester came along and bashed my car to protest the war in Iraq. Here is the Irish criminal-damage statute:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.A person charged with an offence to which this section applies shall … be treated … as having a lawful excuse . . .

(c) if he damaged or threatened to damage the property in question …. in order to protect himself or another or property belonging to himself or another … . and, at the time of the act or acts alleged to constitute the offence, he believed

(i) that he or that other or the property, right or interest was in immediate need of protection, and

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

The five protesters argued that they acted to protect the Iraqi, who were in immediate need of protection, and that bashing a U.S. military plane was reasonable under the circumstances, since it is the U.S. military that is killing Iraqi (the protest happend in 2003 — now of course, there is much killing of Iraqi by Iraqi). Remarkably, the court heard evidence as to the legality of the U.S. war against Iraq. Under the statute, the case therefore came down to the “reasonableness” of the protesters’ belief that it was necessary to destroy U.S. military property in order to save Iraqi lives. The case was won for the defense, I believe, the moment counsel managed to get the issue of reasonableness before the jury.

Judge Reynolds said only the reasonableness of the belief, not its honesty, was at issue in the case, and said the question was so tied up with the facts of the case that it wouldn’t be appropriate for her to prohibit the jury from considering it.

Detailed transcripts of the trial are available, which give insight into what was said on the issue of reasonableness. I will add some excerpts below. But first, a couple of theoretical points.

The first point: This case shows very clearly the tension created by an “override” provision in the (criminal) laws. What is being argued here is that there are higher considerations of justice or morality or necessity that trump the law. By definition, the law is antithetical to such overrides and their only certain characteristic is that they apply in exceptional cricumstances (comparable to Radbruch’s formula about “extreme injustice” if operating at another level). Arguments against taking into consideration the horror of the war in Iraq, its alleged illegality, the sincerity and concern of the accused protesters all stem from the potential consequences for the legal system: Would our efforts to protect private property not be vitiated if we permitted such defenses? Are we not rocking the very foundaton of law if we permit an override, based in morality and religion, or even worse, in politics? Such arguments, to my mind, have greater theoretical than practical weight. While we can never agree on what justice or truth mean, we can often agree on what is injustice or betrayal: Extreme cases are easier to agree on. An override provision for extreme cases therefore does not significantly undermine law and the general belief in its applicability and enforcement. Usually slippery-slope arguments are brought to bear against override provisions (that’s my term, by the way), and like almost all slippery-slope arguments I find them unconvincing, since they pre-suppose an inability to draw a meaningful distinction between “normal” cases and extreme cases. (The U.S., I am sure, is worried about about the slippery-slope potential of the jury verdict: They have already indicated that they would like a word with the Irish government to discuss the “implications of the judgment.”)

My second point is technical. [EDIT: Please see the comments to this post] The Irish statute declares criminal damage that was reasonably believed to be necessary to prevent harm to be lawful, which means, for example, that self-defense would not be permissible against the act. Consider that the airplane’s pilot had tried to defend his airplane against the attacking peace protesters and that the pilot had injured one of the protesters while trying to ward them off. If the protesters’ reasonable beliefs made their act lawful, the pilot would be prevented from stopping the attack by force and could be prosecuted for assault and battery if he tried: self-defense is a right only against unlawful attacks. That result strikes me as absurd. But the Irish statute does not seem to provide a category of acts that are unlawful yet not punishable. In other words, no distinction is drawn between justifications (eliminating the unlawfulness of the act) and exculpations (removing the guilt of the actor). If the court could say “the act by the five protesters was unlawful – but they were excused from punishment for the unlawful act” the illegality of criminal destruction of property would not be called into question. There would be less of a suggestion that it is okay to go around bashing airplanes. In this respect the case is similar to Regina v. Dudley & Stephens, the famous case of two castaways who were convicted of homicide for killing and eating the ship’s boy in order to survive in an open boat at sea. In Dudley & Stephens, which was decided in 1884, the court cannot conceive of an unlawful act that isn’t punishable. But there is clearly a need in cases of extreme necessity to publicly condemn the act but to spare the actors. In Dudley v. Stephens the practical solution was for Queen Victoria to commute Dudley’s & Stephens’ death sentences to six months’ imprisonment.

But back to the Irish plane-bashers. Here are some excerpts from the interesting transcripts (lightly edited). First, a passage from the prosecutor’s closing argument:

We live in a country that has law, a system, a vote, a voice. They [the accused] said that’s not good enough, we will do something more. They had no lawful excuse. No emergency. They made an eloquent statement. Damien Moran [one of the accused] said he looked forward to being put on trial to test the conscience of the Irish people. Where do we stop? If someone is drunk and about to get into a car and you go over and assault the person in an effort to prevent him from getting in (and possibly killing someone) that would be reasonable. But that’s not what happened in this case. In this case, the five have contributed to the action. Your consciousness may have been raised during the trial. Deirdre [another of the accused] was asked about what would constitute success. She had replied that for her (it would have been) success if other Irish citizens had taken part. This was her mission. … All five were raising public opinion to stop others from going to war. This is laudable. But is it reasonable? No. It is not a lawful excuse. … Ed Horgan brought an action to the Courts to prevent the government from using Shannon because he thought it was unconstitutional. Eoin Dubsky did similarly. At least one of the accused knew of these actions. Not one of them went to a lawyer but had a view on what the law was. They said that the Irish Constitution didn’t allow this [the use of Shannon airport by US military]. Only you can decide if it’s reasonable. They knew we have a democracy, a system. If there is criminal activity or threat (unless, as indicated, there is a burning building) we don’t set up checkpoints, vigilantes, or posses, [who] take law into their own hands. What they did was very brave, hats off to them. They did what they did, they knew it was criminal. It was a conscience-raising exercise And they looked forward to this trial. You must decide whether what they did falls on the wrong side of the line. Democracy does not allow people to take the law up into their own hands.

Here is an excerpt from one of defense counsel’s closing statements. When is the last time you quoted a long passage from the Sermon on the Mount in court (and followed it up with Forest Gump’s mother)?

Mr. Devally [the prosecutor] has said the action of these defendants was a political act. I’ll tell you of some one who made a great political speech, the greatest political speech of all time and that’s Jesus Christ. And the name of the political speech he made was “The Sermon on the Mount”. You’ll find it in Matthew chapter 5, verses 3 to 10. This is what it says:

Blessed are the poor in spirit: for theirs is the kingdom of heaven. Blessed are the meek: for they shall posses the land.
Blessed are they who mourn: for they shall be comforted.
Blessed are they that hunger and thirst after justice: for they shall have their fill.
Blessed are the merciful: for they shall obtain mercy.
Blessed are the peacemakers: for they shall be called the children of God.
Blessed are they that suffer persecution for justice’ sake, for theirs is the kingdom of heaven.

These are the words of Our Lord and Saviour Jesus Christ and Jesus is one of the greatest pacifists that ever lived on this earth.

Now Lebanon is burning. Today children swimming in a pool were bombed. A swimming pool is now filled with burning children. This is war. People in Gaza are suffering and children dying. Now, I ask you: Would you take an axe to destroy an Israeli plane or a Hizbullah rocket?

We may ask “What is good?” Forest Gump’s mother has the answer: “Good is as good does.”

Finally, here is a bit from the second defense counsel’s closing statment, showing that when you argue the necessity defense, the Nazis are never far off in the landscape of argument.

Also, Mr. Devally [the prosecutor] said the accused may have had other reasons, such as to raise consciousness, get others to join, etc., and that that, somehow or other, weakens the reasonableness of their actions. Raising consciousness doesn’t weaken the reasonableness of acting to save a life.

The question maybe that we should be asking is: Why does the vast majority do nothing? We all read about the sanctions – Why did we just continue on?

Mr. Nix elicited that the whole number who died because of sanctions in Iraq was one quarter of the Holocaust figure. Germany in ’39 is not equal to Ireland in 2003 Germany in the 30s was gripped by a totalitarian regime. Ireland in 2003 was not. Yet, the question must be asked “Why did no-one speak out about the sanction deaths in Iraq? Mr. Nix said that if there were even a thousand deaths of children in Ireland, there would be an outcry. – Is he over optimistic. In Turkey the average age is 57. Our own Travellers [itinerant Irish poor] – how many are over 57? But we don’t see it.

Three years later, the Events of 2003 have faded. In that year we were in the eighth year of the Celtic Tiger. There was a great fear of going back to the bad times – economically – that we had come through. It became clear in the debate of the time that what the Government was doing (in letting the US military use Shannon) was based on their fear that (US) Companies would get up and go and the economy would regress. The economy was the important factor. If you disagree with this viewpoint, fair enough; but if you agree, you then begin to understand how we can see 1.5 million people die and take no action to prevent it.

The Germans who stayed silent during the Holocaust were not bad people. The Irish who didn’t get angry were not bad people – they were just people who were wrapped up in their own business.

When you do something, as Nuin Dunlop [one of the accused] did, you don’t know whether or not the effect will gather the force of a tsunami. History has shown that people who go against the grain make a difference. You can’t conclude it won’t make a difference What you can say is that it’s reasonable to assume that it might make a difference.

Rosa Parks got on a bus and set off a chain reaction. Black people were marching all over America. So much so that their feet were sore, but their souls were resting.

[tags]iraq, defense of others, ireland, criminal law[/tags]

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