written statement of the Governmentof Malaysia
.- A SUEMISSION TO THE INTERNATIONALCOURT OF JUSTICE
ON
THE LEGAL STATUS OF THE USE OF NUCLEARWEAPONS
....
INTRODUCTION
The World Health organisation (WHO), of which Malaysia is a member
state, has posed the following question to the International Court of
Justice (or World Court):
"ln view of the health and environmental effects, would the use of
.- nuclear weapons by a State in war or other arrned conflict be a breach
- of its obligations under international law, including the WHO
Constitution?."
Malaysia welcomes an advisory opinion on the legal status of the use of
nuclear weapons, as it desires world order and legal clarity on the
question of the use of nuclear weapons.
Such clarification will help WHO and the international community to
promote the changes which must be brought about to effect primary
prevention of health and environmental hazards arising out of the use of
nuclear wea-ons.
Although the rule of international law and the knowledge of the law may
appear unimportant to the nuclear powers, it is indispensable to the
community of smalier nations, who feel insecure and vulnerable in a
world in which stated threats of nuclear annihilation are apparently
allowed to exist in a legal no-man's land.
The Government of Malaysia believes that no plague, no epidemic, no
environmental-or health hazard in human history can be compared with
the consequences of a nuclear war.
An understanding of the catastrophic levels of destruction, death and
irremediable suffering that would result from an explosion of a single
nuclear warhead near a populated area compels only one conclusion -
no such-explosion must ever happen, whether by accident, through a
terrorist act,or in war.Although the end of the Cold War has considerably reduced the chances
of a global nuclear war, the nuclear weapons states stiil subscribe to the -
strategy of nudear detegence. ln the present post-Cold War clirnate,
the legal opinion of the International Court of Justice could make an
important contribution to the realisation ofa nuclear weapons-free world.
They could not replace nuclear disarmament initiatives but they could
provide the legal and moral parameters within which such initiatives
could succeed. .-
THE LAWS OF WAR -
Frorn the beginnings of recorded history, there has been a cornmon
imperative in diverse cultures and religions to place some limitations on
the permissible instrumentalities of warfare. Long before the laws of war
were codified in such instruments as the Hague and Geneva
Conventions and the Geneva Protowls, certain types of weapons were
prohibited in many parts of the world.
For example, 'the Declaration of St. Petersburg in 1868 intended "to
reconcile the necessities of war with the laws of hurnanity", forbade the
use "of any projectile of less weight than four hundred grammes, which
is explosive, or is charged with fulrninating or inflammable substances".
The fundamental principle of the laws of war is that the right to adopt
means of injuring the enemy is not unlimited and can be surnmarised in
six basic niles, which involve a balancing of military necessity and
hurnanity:
Rule 1: It is prohibited to use weapons or tactics that cause
unnecessary or aggravated devastation or suffering.
Rule 2: It is prohibited to use weapons or tactics that cause
indiscrirninate harm as between cornbatants and non-combatants,
military and civilian personnel.
Rule 3:
It is prohibited to use weapons or tactics which violate the
neutral jurisdiction of non-participating states. Rule 4: It is prohibited to use asphyxiating, poisonous or other gas, and
al1 analogous liquids, rnaterials or devices, including bacteriological
rnethods of warfare.
Rule 5: It is prohibited to use weapons or tactics that cause widespread,
long-term and severe damage to the natural environrnent.
Rule 6: It is prohibited to effect reprisals that are disproportionate to
their antecedent provocation or to legitimate rnilitary objectives, or
disrespectful of persons, institutions, or resources otherwise protected
by the laws of war. .
It is clear therefore that the laws of war (ius in bello) consist of a number
of well established and universally recognised principles, each of which
individually and collectively prohibit the use of nuclear weapons in
warfare.
These principles are:
the principle of moderation
the principle of discrimination
the principle of proportionality
the principle of necessity
the principleof humanity
the principle of neutrality
the principle of environmental safety
the principle of non-toxicity
THE PRINCIPLE OF MODERATION
- ..
From medieval tirnes, man has defined and placed humanitarian
limitations on the conduct of warfare.
-- - In 1863, during the Arnerican Civil War, the ~ieber;code was adopted
and it declared that military necessity does not admit of cruelty, nor the
use of poison, or "the wanton devastation of a district" (Article XVI).
In 1868, the Declaration of St Petersburg, in trying to reconcile the
necessities of war with the laws of humanity, banned a particular
weapons because its cruelty was out of proportion to its destructive
potential. It declared that "the progress of civilisation should have the
effect of alleviating, as much as possible, the calamities of wai'.The Hague Convention of 1907 went considerably beyond the
Dedaration of St. Petersburg in the specificity of their proscriptions, the
salient features of which are:-
Article XXII: The right of belligerents to adopt means of injuring the
enemy is not unlimited.
Article XXIII: It is especially forbidden
(a) to employ poison weapons;
(b) to kill or wound treacherously individuals belonging to the
hostile nations or army;
(c) to declare that no quarter will be given;
(d) to employ arms, projectiles, or materials calculated to
cause unnecessary suffering;
(e) to destroy or seize the enemy's property, unless such
destruction or seizure be imperatively demanded by the
necessities of war.
Article XXV: The attack or bombardment, by whatever means, of towns,
villages, dwellings or buildings, which are undefended, is prohibited.
--
THE PRINCIPLE OF DISCRIMINATION
It is prohibited to use weapons that fail to discriminate between military
and civilian personnel.
This is the most fundamental principle to be observed in modern
warfare.
In 1923, a Commission of Jurists adopted the Hague Rules of -Air
Warfare, Article 22 of which provides that:
Aerial bombardment for the purpose of terrorising the civilian
population, or of destroying or damaging private property not of
military character, or of injuring non-combatants is prohibited. In 1925, the Protocol -for the Prohibition of the Use in War of
Asphyxiating, Poisonous and Other Gases, and of Bacteriological
Methods of Warfare was adopted, prohibiting "the use of asphyxiating,
poisonous or other gases, and of al1 analogous liquids, materials or
devices".
This protocol, also known as the Geneva Gas Protocol, declared that
such use "has been justly condemned by the general opinion of the
civilised world" and that the purpose of the Protocol is that- "this
prohibition shall be universally accepted as a part of international law,
binding alike the conscience and the practice of nations". -
Most nuclear weapons, certainly al1 strategic weapons, are many
thousands of times more destructive than even the largest conventional
weapons. Unlike conventional weapons, nuclear weapons risk putting
an end to civilisation as we know it. The chief characteristic of-
conventional weapons is their potential for blast or shock damage,
accompanied by some thermal effects. By contrast, nuclear weapons
produce blast and shock darnage and, in addition, extended thermal
radiation, electromagnetic pulse effects, and invisible but highly-
penetrating and harmful radiation across great distances and over
extended periods of times.
In other words, the deadly effects of nuclear weapons are suffered
indiscriminately,by military forces and civilian populations alike.
Any use of nuclear weapons would therefore ipso factobe a violation of
the principle of discrimination. It is one of the great paradoxes of the
nuclear age that a soldier running a bayonet through a civilian would be
considered guilty of violating the laws of war, whereas a general who
incinerates a million civilians with a single nuclear bomb is not.
It is prohibited to effect reprisais which are disproportionate to their
antecedent provocations or to legitimate military objectives, or
disrespeciful of persons, institutions and resources otherwise protected
by the laws of war.
It follows from the discussion in the preceding section that any use of
nuclear weapons in response to conventional weapons violates the
principle of proportionality.However, this does not dispose of the more difficult question of the
legitimacy vel non of a nuclear response to a nuclear attack. Here, the
overriding norm is that reprisals "must conform in al1cases to the laws
of humanity and morality". i.e. the infliction of reprisals is subject to al1
the other principles of humanitarian law.
Therefore, civilian populations, civilian and culturalobjects, such-as utility
installations and places of worship, and the environment, should not be
the targets of reprisal.
The concept of 'Assured Destruction', when deliberately applied to
policies for the acquisition of and use of nuclear weapons, appears to be
directly opposed to the most fundamental principles found in the
international law of armed conflict. Even as a form of reprisal, the
concept of 'Assured Destruction' is prohibited if it includes deliberate
attacks on the civilian population.
It is highly questionablewhether the use of force as a means of reprisal,
rather than self-defence, is lawful under the regime of the United Nations
Charter, Article2(4) of which commands al1members to "refrain in their
international relations from the threat or use of force against the
territorialntegiity or political independencr of any state."
The principle purpose of the United Nations, which is "to Save
succeeding generations from the scourge of war" would be defeated if
a country, subjected to a nuclear attack, were to retaliate in kind, since
the likely outcorne of such a nuclear exchange would be the massive
destruction of life in both countries, their neighbours and indeed the rest
of the planet, depending on the size of the exchange.
It follows that the doctrine of nuclear deterrence; which is the current
justification for the stockpiling and potential use of nuclear weapons, is
entirelycontrary to the accepted noms of humanitarian law.
The prohibition of a second "defensive" use of nuclear weapons is
absolute. Itis a rule of jus cogens, analogous to the rule of human
rights law which makes torture a malum in se and therefore does not
allow for the use of torture in response to torture.
THE PRINCIPLE OF NECESSITY
It is prohibited to use weapons whose effect is greater than that required
to achieve a legitimate militaty objective. The principle of necessity is sometimes cited to justify the only two
occasions on which nuclear weapons have been used-the atomic
bornbings of Hiroshimaand Nagasaki.
It has been argued thashe killing of a few hundred thousand civilians
saved the lives of millions of Americans and Japanese, who would have
been killed in an invasion of Japan. This theory of military necessity
argues that rnilitary necessity overrides al1 other principles and that
whatever means are chosen to achieve the ends of victory are justified.
.-
However, military necessity, like reprisal, is not an absolute. If necessity
could be used to justify prohibited weapons or tactics, it would make a
rnockery of such prohibitions and milita~y cornrnanders could always.
invoke necessity to justify whatever weapons or tactics they chose to
use, no matter how brutal or inhumane.
As early as 1863, the Lieber Code spelled out the restrictions on the
principle of necessity:
Article 14: Military necessity, as understood by modern civilised nations,
consists of the necessity of those measures which are indispensable for
securing the ends of war, and which are lawful according to the modem
law and usages of war.
The laws of war distinguish between norms which are subject to being
overridden by military necessity and those which-are not.
For example, Article 58 of the Hague Rules of Air Warfare (192211923)
provides that a neutral private aircraft must not be destroyed "except in
the gravest military ernergency".
No such exceptions are written into the conventional or customary laws
of war with respect to the principles applicable to the use of nuclear
weapons as weapons of mass destruction. On the contrary, Article 1of
the Geneva Conventions (1949) enjoins the parties to respect their
provisions "in al1circurnstances", while Article 3 provides that persons
taking no part in the hostilities shall "in al1circurnstances" be treated
hurnanely and protected from violence to life and person" at any tirne..
and in any place whatsoever." -
Frorn the foregoing, it is clear that "rnilitary necessity, while often
clairned as a justification by states and rnilitary cornrnanders who have
violated the laws of war, is powerless to justify the use of nuclear
weapons when the entire body of that law is taken into consideration.
...-
THE PRlNClPLE OF HUMANITY
It is prohibited to use weapons which cause unnecessary or aggravated
suffering. .
This principle is the rnilitary counterpart of the rule against cruel, unusual
and inhuman punishrnent in a civilian context. While it is airned prirnarily
-=
at reducing the suffering of cornbatants, it also applies to the use of
weapons against civilians.
The ban on excessively cruel weapons dates back to the earliest records
of hurnanitarian law and is a major theme running throughout the
gradua1 evolution of the laws of war. It is ernbodied in the two
overarching principles that the right of the parties to an arrned conflict to
adopt rneans of injuring the enerny is not unlirnited and that, in the
words of the 'de Martens Clause, "the laws of humanity" and "the
dictates of the public conscience" are to govern the rules of warfare.
It is indispufable that the cmelty and inhurnanity of nuclear weapons is
of an order of magnitude far greater than any conventional weapon of
rnass destruction.
Testirnonies by survivors of the bombing of Hiroshima and Nagasaki
record the irnrnediate burn and blast effects of nuclear weapons and
their long-range consequences,.placing nuclear weapons in the category
of weapons that cause unnecessary and aggravated devastation and
suffering. If it cannot be.-said of nuclear weapons that they violate the
lawsof hurnanity and the dictates of public conscience, then this cannot
be said of an.y weapons in the world's rnilitary arsenals, past or present.
THE PRINCIPLE OF NEUTRALITY
It is forbidden to use wea...s that violate the neutral jurisdiction of non-
participating states.The principle of neutrality was airned at preventing the incursion of
belligerent forces into neutral territory, or attacks on neutral persons or
ships:
~ague V, Article 1: "The territory of neutral powers is inviolable".
Hague XIII, Article 1: "Belligerents are bound to respect the
sovereign rights of neutral powers ..."
It is clear that the principle of neutrality applies with equal force to
transborder incursions of armed forces and to the transborder damage
caused to a neutral state by the use of a weapon in a belligerent state.
In this sense, nuclear weapons, given their uncontrollable effects, are
neutrality-violating weapons par excellence.
The classic study of "Consequences of Radioactive Fallout" by Patricia
Lindop and J Rotblat in1981 showed how the radioactivity in the fallout
after a nuclear explosioncan expose populations to external and interna1
radiation with deleterioushealth effects.
Just as nuclear weapons are unable to discriminate betweencombatants
and non-combatants, so they are unable to discriminate between
belligerent stafes and neutrals.
THE PRINCIPLE OF ENVIRONMENTAL SAFETY
--
It is forbidden to use weapons that cause widespread, long-term and
severe damage to the environment.
The right to a safe, clean and livable environment is sometimes referred
to as a "third generation right". This may be so to the extent that it
transcends the laws of war and concerns itself with protection against
environmental degradationfrom whatever source.
The principal of environmental safety is now recognised as part of
international humanitarian law: "Respect forthe environment is therefore
one of the foremost obligations of the international community, which
cannot and must not sit by and idly witness the destruction -al1too often
deliberate -of the collective heritage of mankind". There are in existence numerous treaties and instruments of customary
international law which prohibit the use of-methods or means of warfare
which are intended, or many be expected, to cause widespread, long-
term and severe damage to the environment, as laid down in Protocol
l(1977).
For example: Part III, Section 1: Methods and Means of Warfare, Article
35 (3): "lt is prohibited to employ methods or means of warfare which
are intended, or may be expected, to cause widespread, long-terrn and
severe damage to the environment."
Chapter III, Artide 55(1): "Care shall be taken in warfare to protect the
natural environment against widespread, long-term and severe damage.
This protection includes a prohibition of the use of methods or means of
warfare which are intended or may be expected to cause such damage
to the natural environment and thereby to prejudice the health or survival
of the population."
Stockholm Declaration on the Hurnan Environment (1972): Principle 26:
"Man and his environment must be spared the effects of nuclear
weapons and al1other means of mass destruction. States must strive
to reach prompt agreement, in the relevant international organs, on the
elimination and complete destruction of such weapons."
The environmental effects of a major nuclear exchange of the order of
10,000 megatons between the United States and the then Soviet
Unions, based on mathematical models, were vividly described as a
"nuclear winter" by a group of distinguished scientists about ten years
ago.
Although the nudear winter scenario is now extremely unlikely,
nevertheless those projections convey some idea of the severity and
duration of the effects ofmuclear war on the environment.
- -
THE PRINCIPLE OF NON-TOXICITY
It is prohibited to use asphyxiating, poisonous and other gases, and al1
analogous liquids, materials or substances.
The premier treaty in this field is the Geneva Gas Protocol (1925) In 1956, Article 14 of the International Committee of the Red Cross Draft
Rules expanded on the Geneva Gas Protocol in the following terms:
"...the use is prohibited of weapons whose harmful effects - resulting in
particular from the dissemination of incendiary, chemical, bacteriological,
radioactive or other agexts - could spread to an unforeseen degree or
escape, either in space or time, from the control of those who employ
them"
Radioactive fallout is in effect a poison that can be absorbed through the
skin, breathed in, or eaten. It is accumulative and can give rise to
radiation sickness, cancers and death, depending on the dose received.
The prohibition in the Gas Protocol in unequivocal and its application by
analogy to nuclear weapons so clear, that it is impossible not to reach
the conclusion that the use of nuclear weapons is illegal.
THE USE OF NUCLEAR WEAPONS VIOLATES THE RlGHT TO LlFE
Although it is not easy to arrive at a consensus on the hierarchy of
human rights, it is dear that the one right transcending al1others is the
right to life.
The sirnplest and strongest formulation of this right is found in Article 3
of the Universal Declaration of Human Rights: "Everyone has the right
to life, liberty and security ofrson."
As postulated above, the use of nuclear weapons would in most if not
al1 circumstances result in the deaths of sevëial thousands, if not
millions, of innocent civilians,in violation of several principles of
humanitarian law. Such an event: however, would also violate the right
to life.
This point has been recognised by the Human Rights Committee of the
United Nations in its general comment (1984) under Article 40(4) of the
International Covenant on Civil and Political Rights:
3. While remaining deeply concerned by the toll of hurnan life
taken by conventional weapons in armed conflicts, ....
representatives from al1 geographical regions have
expressed their growing concern at the development and
proliferation of increasingly awesome weapons of rnass
destruction..... . 4. The committee associates itself with this concern. It is
evident that the designing, testing, manufacture,
possession and deployment of ..nuciear weapons are
among the greatest threats to the nght to life which
confront mankind today. -
..- -
RESOLUTIONS OF THE UNITED NATIONS
-. '
The United Nations General Assembly Resolution 1653- (XV) reads, in .
part, as follows:-
(a) The use of nuclear and therrno-nuclear weapons is contrary to the
spirit, letter and aims of the United Nations and, as such, a direct-
violation of the Charter of the United Nations.
(b) The use of nuclear and therrno-nuclear weapons would exceed
even the scope of war and cause indiscrirninate suffering and
deStnicti0n to mankind and civilisation and, as such, is contrary
to the rules of international law and to the laws of hurnanity;
(c) The use of nuclear and thermo-nuclear weapons is a war directed
not agalnst an enerny or enemies alone but also against rnankind
in general, since the peoples of the world not in such a war will
be subjected to al1 the evils generated by the use of such
weapons;
(d) Any State using nuclear and thermo-nuclear weapons is to be
considered as violating the Charter of the United Nations, as
acting contrary to the laws of hurnanity and as committing a crime
against mankind and civilisation.
CONCLUSION
When human survival is threatened by the use of nuclear weapons, it is
vital that mankind has an authoritative legal opinion by the highest
international authority, the International Court of Justice, on the illegality
or otherwise of nuclear weapons. The censure of declared illegality,
reinforced by the weight of acadernic juristic opinion and writing heavily
in favour of illegality, will halt proliferation andadvance the process of
nuclear disarmament. The question of the illegality of nuclear weapons has never been tested
in international law. The opinion of the lnternational Court of Justice
would be advisory only but would have great authority and weight. It
would have a powerful influence on world opinion and be a law that
carries its own inherent sanctions. Governments usually find it harder
to justify or defëna state policy that is obviously illegal than in situations,
as at present, when the law can be denied.
Our contention is that any action that makes it harder for a state to
acquire. use or threaten to use nuclear weapons must be a good action.
The illegality of nuclear weapons under international law appears clear.
Since 1967, the United Nations General Assembly has repeatedly
-- declared by resolution that any use of nuclear weapons would be bath
- violation of the United Nations Charter and a crime against humanity.
ihe General Assembly has on several occasions called for a Convention
on the Prohibition of the Use of Nuclear Weapons.
Legal scholars, including some present and former judges of the
lnternational Court of Justice, have made a strong case against nuclear
weapons, for they offend against established Principles, Treaties and
Conventions by not discriminating beheen civilian and military targets,
belligerents and neutrals, enemy and-.friendly territory, enemy property
and the environment, and even between the generation involved in the
conflicî and generations of neutral nations, not yet born.
-
Nuclear disarmament efforts by people from al1walks of life to protect
mankind and the environment from the use of nuclear weapons have for
too long been rejected by the powerful military-industrial-political
complexes of the nuclear weapons States,that rely on nuclear weapons
as potent instruments of political and military power.
The present struggle against the further spread of nuclear weapons
requires that the.nuclear powers recognise the inherent contradictions
and double standards in their non-proliferation policies. They cannot
expect othe~ nations to forgo nuclear weapons when they themselves
rely on nuclear weapons for their own security.
A ruling by the International Court of Justice that clarifies the legal status
of nuclear weapons is fundamental to the world's nuclear non-
proliferation and disarmament efforts.For fi@ years, the people of the world have yeamed for peace and a
nuclear weapons-free world,in which nuclear weapons would be banned
because they are illegal. A ruling from the InternationalCourt of Justice .
could provide a way. -. .
For al1the reasons stated above, this honourable court is requested to
advise the World Health Organisation that the use of nuclear weapons
by a State in war or other armed conflict isa breach of its obligations
under internationallaw including the WHO Constitution.
Written Statement of the Government of Malaysia