Public sitting held on Wednesday 15 November 1995, at 3 p.m., at
ZIMBABWE'S COMPLETE PRESENTATION TO THE WORLD COURT
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
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
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
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
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 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
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
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
"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
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
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
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. w~HO 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:
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".
"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).
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
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.
"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.)
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