Daniel Simons portraitNon-violent direct action and the law

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.

kingsnorth coal power plantThe Kingsnorth coal power station. © Greenpeace / Will Rose

In 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.