Proposition One


Public sitting held on Wednesday 15 November 1995, at 3 p.m., at
the Peace Palace, the Hague
President Bedjaoui presiding in the case,


The Government of the Republic of Zimbabwe is represented by: Mr. Jonathan Wutawunashe, Charge d'Affaires, Embassy of the Republic of Zimbabwe, Brussels.

The PRESIDENT: Please be seated. This afternoon the Court will resume its public hearings in the case of the two advisory opinions requested by the United Nations General Assembly and the World Health Organization. I give the floor to His Excellency Mr. Jonathan Wutawunashe of Zimbabwe for his oral statement.

Mr. WUTAWUNASHE: Mr. President, distinguished Members of the Court, it is an honor to appear before you today to present oral testimony on the questions asked by the world Health Organization and the United Nations General Assembly on the legality of the threat or use of nuclear weapons.
Zimbabwe believes that these questions are of the utmost concern to the international community, and it is only appropriate that it should be brought to the attention of such an esteemed body as this. The Court's opinion, clarifying the law on this issue, will have great weight and influence in the strengthening of international law and in the development of justice and peace. I might add that we feel that it is mischievous to try to exclude this Court from playing a role that is so obviously appropriate for it.
May we express at the outset our sympathy and condolences at the sad and untimely death of Judge Aguilar. We pass our respects especially to his family and colleagues.
As the last State to appear in these proceedings, it behooves Zimbabwe to attempt at least a brief recapitulation of the dialectic which has engaged the attention of the Court for the past two weeks.
The majority of States have argued for the admissibility of the WHO request; a minority against it.
A minority has argued for the exercise of negative discretion; the majority against it.
On these points, the issues have been joined quite clearly.
On the merits of the question before the Court, one side has based its arguments for illegality on the uniquely destructive and uncontrollable nature of nuclear weapons; the other side has made no reference to this, treating nuclear weapons essentially as if they were just another type of conventional weapon.
One side has asked the Court to apply general principles to a particular weapon; the other side has largely ignored this, harping on the fact that there is no treaty or convention prohibiting such weapons specifically.
Again, one side has argued that applying general principles of humanitarian, environmental and human rights law to these weapons from hell, they must be declared illegal per se; the other side has contended that, while the threat and use of nuclear weapons may be illegal in some circumstances, it may be legal in others, without ever sketching a single scenario in which legality might obtain.
The Court, we hope, will see clearly that one side has proved its case, while the other has argued a case not before the Court.
Having said this, Zimbabwe would like to present its views concerning the case at bar.
Mr. President, Zimbabwe, itself a non-nuclear State on a continent which is determined to rid itself of even the possibility of weapons of mass destruction existing on its soil, in a region - southern Africa - which has defined peace and good neighborliness as its survival code, and inside borders within which life and health are much cherished, has a direct interest in the consideration of the important question whether or not weapons, which can wipe out entire communities and nations and seriously impair the well-being of neighboring populations, are healthy not only to keep around but also to use.
The submission of a request for an advisory opinion by the World Health Organization creates an important opportunity for the International Court of Justice to assert the legal and moral authority that we, as members of the Non-Aligned Movement, considered to be essential to the task of realigning the global system with objective standards of legality and reason.
Zimbabwe sees clearly the importance of global institutions, of which this Court is a true example, being strengthened and supported in the role of providing rulings and guidelines based on law where arbitrary and self-serving approaches would otherwise - and sadly, often do - rule the day. On the question of the legality or otherwise of the threat or use of nuclear weapons, the International Court of Justice has, in our view, a clear issue on which to provide an effective opinion, the burden of which should be the illegality of resort to such weapons in any circumstance.
Mr. President, it is common knowledge that nuclear weapons have earned their universal notoriety on account of their uniquely horrendous effect on their victims and on the environment, and on the impossibility of confining their effects to precise military targets. If the testing of these weapons holds the potential to harm both populations and the environment, it is frightening to imagine the devastation that the actual use of these weapons would wreak on people and places both inside and outside any theatre of war, particularly when we recall such instances as Hiroshima and Nagasaki, where supposedly small bombs were used to such great and lasting effect.
Zimbabwe is satisfied that the question before the Court should be resolved forthrightly and simply: using such weapons cannot be legal. To threaten to use them is to threaten to perpetrate a criminal act.
Mr. President, distinguished Members of the Court, Zimbabwe has had a very close interest in this initiative from the outset and is therefore grateful for this opportunity to participate in the oral hearings. In 1992, Zimbabwe introduced a draft text to ~he Non-Aligned Movement for a United Nations General Assembly resolution on this initiative. After consideration by the Non-Aligned Movement, the revised draft resolution was introduced to the General Assembly in 1993.
The decision by the Non-Aligned Movement to introduce the resolution was made by consensus. However, this resolution was not put to a vote in the United Nations General Assembly in 1993. In announcing the decision not to put the General Assembly resolution to the vote, the Indonesian Ambassador, Mr. Soegarda, remarked that there appeared to be a new willingness by the nuclear States to take steps towards the elimination of nuclear weapons. These remarks were prompted by the fact that at the same General Assembly the nuclear States had finally agreed to negotiating a comprehensive test ban treaty and to negotiating a fissile material cut-off treaty. The Non-Aligned Movement decided to table the resolution in order to allow the nuclear States the chance to demonstrate whether they were committed to the achievement of nuclear disarmament at an early date or not.
Subsequent events demonstrated conclusively that the nuclear States were not and still are not committed to achieving nuclear disarmament at an early date. The Comprehensive Test Ban Treaty (CTBT) is still not negotiated. The negotiations on a fissile material cut-off are stalled. The Non-Proliferation Treaty has been extended without the nuclear States giving a time-frame for implementation of complete nuclear disarmament, as required by Article VI. Two nuclear States are exploding nuclear bombs. In the case of France, this is being done far away from their continental territory, in a region declared as a nuclear-weapon-free zone.
It has recently been announced that the United States will conduct six underground hydronuclear tests, involving nuclear materials, in 1996 and 1997, after they plan to conclude a CTBT (US Department of Energy News Release, 27 October 1995). These would surely violate the spirit, if not the letter, of a comprehensive test-ban treaty. Four of the five nuclear States continue to hold onto policies of first-use of nuclear weapons, and all five declared nuclear States hold on to policies of retaliatory use of nuclear weapons, despite repeated United Nations General Assembly resolutions calling on them to renounce such policies.
It is in that light that the Non-Aligned Movement decided by consensus in 1994 (Cairo Ministerial Meeting, June 1994) to reintroduce the resolution calling for an advisory opinion, and to put it to the vote in the General Assembly. This resulted in it being adopted by a large majority.
Mr. President, Members of the Court, a few States, notably France, Russia, the United Kingdom, the United States, Germany and Italy, have asked the Court to use its discretion not to consider the question asked by the General Assembly. They argue that a decision from the Court could upset disarmament negotiations. It seems to us a curious proposition, coming as it does from those States with a vested interest in preventing progress on nuclear disarmament, a point also made by Costa Rica yesterday. If it were true that an opinion would delay nuclear disarmament, which we believe is not so, these are the States who would welcome such an opinion. On the contrary, it is the non-nuclear States, those which have the greatest interest in progress on nuclear disarmament, which are supporting this case.
It also seems curious and illogical that the General Assembly, which is the principal United Nations organ dealing with disarmament questions, would undermine its own work by adopting a resolution that would be counter-productive to nuclear disarmament. This, we believe, is not the case.
Even if there were some merit, which there is not, to the argument that an opinion from the Court would harm disarmament negotiations, that is for the United Nations General Assembly to decide, not the Court. The Court has been asked by the General Assembly to answer a question which the General Assembly believes will assist it in carrying out its functions. That is the essence of the matter. It is the Court's role not to judge the wisdom of such a request, but to render the opinion requested of it.
Zimbabwe welcomes the comments made on discretion in the oral presentations of Egypt and Malaysia, and in the written statements of Nauru and Solomon Islands.
With regard to the admissibility of the question asked by the World Health Organization, Zimbabwe welcomes the oral statement by New Zealand and Samoa, and the written statements by Nauru and others which argued that WHO did have a mandate to request the opinion from the Court and that the Court should therefore give a reply. Zimbabwe also refers to the arguments supporting this view in the publication Nuclear Weapons and the International Court of Justice: The admissibility of the request of the WHO, by Professor Michael Bothe (IALANA - Schriftenreihe, 1994).
It is absurd to claim, as one nuclear State did in court, that the only role of WHO is "downstream", that "WHO, however, has no competence, if I may say so, except after the event". Does this State believe that WHO should not have conducted its preventive health programmes to combat tuberculosis and smallpox? Does this State believe that nutrition, sanitation and other preventive health care is not the prerogative of WHO? In the case of nuclear weapons WHO has commented that the threat of nuclear weapons poses the greatest health threat to humanity, and I think that this is no exaggeration at all, this is common sense. Should WHO be prevented from considering preventive health measures on this, the greatest health threat to humanity, merely because a small minority of States - interested States - may need to change their existing policies?
Mr. President, Members of the Court, Zimbabwe is a relatively small developing country with limited resources. Like other small developing countries represented in these proceedings, Zimbabwe is making the effort to participate because this issue is of primary importance to all of us. The nuclear-weapon States argue that their nuclear weapons are not a threat to security, but that they promote security. This is not how we feel. We feel that an honest and true promotion of security is the eradication of nuclear weapons.
Nuclear weapons create a vastly greater threat than any other weapon because of their indiscriminate nature. The radiation from nuclear weapons knows no boundaries. The ones threatened are not only those against whom the weapons are pointed, but the whole world.
Until very recently nuclear weapons were possessed by one of our neighbours, apartheid South Africa. The threat to our security was very real during those times. These nuclear weapons were used to bolster an illegal regime of apartheid, and to intimidate those front-line States which opposed such a policy. Indeed, it has come out recently in a publication that my own capital, Harare, was one of the specific targets.
While that direct threat has now disappeared with the revelation by South Africa that it has dismantled its nuclear weapons (Bulletin of Atomic Scientists, May 1993), other threats from nuclear weapons to Zimbabwe still remain. Should nuclear weapons be used in a Middle East conflict, either by one of the Middle Eastern States 1, or by an outside State 2, the radioactive fall-out would surely affect African States as well as Middle Eastern States.
1 Israel is reported to have up to 200 nuclear weapons.
2 The United States is reported to have had nuclear-capable missiles in the Gulf during the war with Iraq.
Similarly, if nuclear weapons were to be used in south Asia, as they nearly were in 1991 (Seymour Hersch, "On the Nuclear Edge", The New Yorker, 29 March 1993, pp. 56-73), other adjoining regions such as Africa could also be affected by the radioactive fall-out, refugees and relief requirements.
It should be noted, however, that no matter where in the world nuclear weapons are used, the effects could be global. The global radioactive fall-out from Chernobyl and from atmospheric nuclear testing demonstrates the global effects that would occur from the use of just a small proportion of the world's arsenals. The WHO studies on the effects of nuclear war on health and health services, which were submitted to this Court by WHO, clearly support this.
Mr. President, distinguished Members of the Court, the possibility of nuclear weapons being used remains as long as they exist and deterrence policies remain. Their use could occur through conscious decision, miscalculation, or by accident. Since 1945, with the exception of the nuclear bombs exploded for testing purposes, humanity has been saved from the use of nuclear weapons more by luck than good management.
Former United States Department of Defence nuclear strategist, Daniel Ellsberg, has indicated that there have been at least twelve specific situations in which United States Presidents have seriously considered using nuclear weapons ("How We Use Our Nuclear Arsenal", in Protest and Survive, edited by E. P. Thompson and Dan Smith.
This threat is recognized by all States including the nuclear States. In 1978, the United Nations First Special Session on Disarmament adopted by consensus a final document which noted in its opening:
"Alarmed by the threat to the very survival of mankind posed by the existence of nuclear weapons ... Convinced that disarmament and arms limitation particularly in the nuclear field, are essential for the prevention of the danger of nuclear war and the strengthening of international peace and security ..."
Despite the recognition of the threat they pose to the survival of humankind, the nuclear States refuse to renounce the threat or use of nuclear weapons. It is for that reason that WHO and the General Assembly have asked for an opinion from the Court.
The way we see it the Court has a role to play that would render an objective legal opinion in the international sense that we all recognize is needed. Zimbabwe believes that the Court should determine that the threat or use of nuclear weapons are illegal in any circumstance.
Substantive written submissions by Nauru, Solomon Islands and Malaysia have highlighted the humanitarian laws of warfare which render the threat or use of nuclear weapons illegal. A number of States including Egypt, Mexico, New Zealand, Iran, Indonesia, Malaysia, and Australia have repeated and added to these arguments in their oral presentations.
Zimbabwe shares fully their analysis that the threat or use of nuclear weapons violates the principles of humanitarian law prohibiting the use of weapons or methods of warfare that create unnecessary suffering, utilize poisonous or analogous substances, are indiscriminate, affect neutral states, are disproportionate or cause long term and severe damage to the environment.
The threat to use nuclear weapons violates the United Nations Charter, the Nuremburg Principles and the general principle that it is illegal to threaten to commit a serious crime.
The illegality of threat or use of nuclear weapons is supported by the weight of customary law, conventions, judicial decisions and the teachings of the most highly qualified publicists.
Zimbabwe would like to take this opportunity to emphasize the comments made by some of these countries regarding the unique nature of nuclear weapons and to respond to some of the claims the nuclear states have made in an attempt to justify their nuclear policies.
Mr. President, distinguished Members of the Court, the nuclear-weapon countries would have us believe that nuclear weapons are no different from conventional weapons. France argued in its oral statement that "all weapons maim". The United Kingdom and the United States argued in their written statements that modern nuclear weapons are capable of precise targeting and can therefore be directed against specific military objectives without indiscriminate effect on the civilian papulation.
Zimbabwe finds it hard to believe that the nuclear States can make such claims after considering evidence that we have been presented with in this Court. The Mayors of Hiroshima and Nagasaki gave disturbing testimony of the blast and radiation effects of nuclear bombs which are small by today's standards. The Marshall Islands gave additional evidence of the severe health and environmental effects nuclear explosions can have many miles away from the explosions themselves. WHO has presented reports to this Court describing the effects of the detonation of one nuclear bomb on a target, and the effects of many nuclear bombs being detonated.
Professor Rotblat, nuclear physicist and Nobel Peace Prize Winner, in a letter to this Court appended to the oral statement of Solomon Islands, argues that any use of nuclear weapons would cause unnecessary suffering, be indiscriminate and would affect the territories of third States. Zimbabwe requests the Court to take special note of Professor Rotblat's opinion.
If the Court has any doubt as to the indiscriminate nature of even the smallest nuclear bomb in the current world's arsenals, Zimbabwe would draw your attention to the research of Professor Rotblat in Nuclear Radiation in Warfare (Taylor and Francis Limited, London 1981), which concludes that even a one kiloton nuclear bomb would produce sufficient radiation to cause unnecessary suffering, be indiscriminate and affect the territories of third States. Dr. Frank Barnaby, nuclear physicist and former director of the Stockholm International Peace Research Institute, in the publication AGlobal Nuclear Arsenals" (Halting the Spread of Nuclear Weapons, Oxford Research Group, April 1995), indicates that the smallest bomb in the world's current arsenals is five kilotons.
Zimbabwe would like to emphasize that radiation from nuclear weapons cannot be contained either in space or in time. Australia, in their oral statement, spoke of the principle of intergenerational equity. Radiation damages the genetic code in humans and other life forms. The nuclear explosions in Hiroshima, Nagasaki and in the nuclear test sites have resulted in subsequent births, from parents exposed, of deformed babies and children with genetic disorders. The use of nuclear weapons therefore violates the right to health and the right to life of not only people currently living, but also of the unborn, of those to be born, of subsequent generations.
Mr. President, the experience of Rongelap, so graphically described in Court by the Marshall Islands, indicates that exposure to radiation could be many years or even decades after the explosion and still generate such genetic damage.
The United States and the Netherlands, in their written statements, argued that the effects of radiation from nuclear weapons should be dismissed because radiation poisoning is merely a secondary effect. The United States for example states that the prohibition against poisonous or other gases and analogous liquids, materials and devices does not apply to "weapons that are designed to kill or injure by other means, even though they may create asphyxiating or poisonous byproducts".
However, there is no distinction made, nor should there be, between primary and secondary effects in the prohibition against the use of poisonous and analogous substances as codified in the Hague Conventions and the Geneva Gas Protocol of 1925. If radiation was an insignificant effect from nuclear explosions, resulting in no poisoning of combatants or civilians, one could make the claim that such use did not violate the prohibitions on poisonous substances. This is clearly not the case. Even in the smaller nuclear weapons, the radiation produced creates a significant threat to the health and life of humans and to the environment. In fact, Professor Rotblat has concluded that in smaller nuclear weapons, the ratio of radiation damage to blast damage is higher even than in larger nuclear weapons (Nuclear Radiation in Warfare, p. 70).
Zimbabwe would like to join Costa Rica in drawing the attention of the Court to the letter submitted to the President of the Court by the International Committee of the Red Cross on 19 September 1995 regarding nuclear weapons and the Geneva Protocols of 1977. In this letter the Red Cross stated:
"Indeed, no one can be unaware of the fact that today nuclear arms of all kinds are generally considered to be weapons of mass destruction, as are biological and chemical weapons. A priori, their use would thus appear to be incompatible with the prohibition, reaffirmed in protocol I, of 'methods or means of combat which cannot be directed at a specific military objective', and are thus 'of a nature to strike military objectives and civilians without distinction." (Art. 51, para. 4).
With regard to the possibility that nuclear States had developed nuclear weapons that did not have indiscriminate effects, the Red Cross stated: "we are not aware of any technical development that might have modified the characteristics of specific nuclear weapons".
Even if it were scientifically possible to develop nuclear weapons which were not indiscriminate, and eminent nuclear physicists including Dr. Barnaby believe that it is not, it is unlikely that any nuclear States would develop such a bomb as it would remove the raison d'etre of nuclear weapons, which according to the United States Joint Chiefs of Staff is to ensure that:
"United States forces and command and control systems [are] viewed by enemy leadership as capable of inflicting such damage upon their military forces and means of support, or upon their country, as to deny them the military option." (Doctrine for Joint Nuclear Operations, US Joint Chiefs of Staff, 1993.)
In other words, Mr. President, the rationale for nuclear weapons is their ability to inflict massive damage on an enemy's country. This makes them inherently indiscriminate.
The United States and the United Kingdom have argued that military necessity might require the use of nuclear weapons. However, if this assertion were valid, which it is not, the majority of countries would require nuclear weapons in case such a necessity arose, and the current nuclear States would not oppose the spread of nuclear weapons in order that other countries could have, as their right, nuclear weapons for self-defence. It would not, I would argue, it would not be too much of a good thing. The fact that the overwhelming majority of countries do not have nuclear weapons, and that nuclear States oppose them acquiring them, indicates the inadmissibility of this proposition.