building on art. 8(2)(b)(xx) of the rome statute of the international criminal court: weapons and...

7/27/2019 Building on Art. 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare

1/25

Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court:Weapons and Methods of WarfareAuthor(s): Roger S. ClarkSource: New Criminal Law Review: An International and Interdisciplinary Journal, Vol. 12,No. 3 (Summer 2009), pp. 366-389Published by: University of California PressStable URL: http://www.jstor.org/stable/10.1525/nclr.2009.12.3.366 .Accessed: 21/08/2013 06:02

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

University of California Press is collaborating with JSTOR to digitize, preserve and extend access to NewCriminal Law Review: An International and Interdisciplinary Journal.

http://www.jstor.org

This content downloaded from 115. 254.19.154 on Wed, 21 Aug 2 013 06:02:28 AMAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/action/showPublisher?publisherCode=ucalhttp://www.jstor.org/stable/10.1525/nclr.2009.12.3.366?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/10.1525/nclr.2009.12.3.366?origin=JSTOR-pdfhttp://www.jstor.org/action/showPublisher?publisherCode=ucal


2/25

3 6 6 |

B U I L D I N G O N A RT I C L E 8 ( 2 ) ( B )( X X ) OF T H ER O ME STAT U T E O F T H E IN T E R N AT IO N A LC R I M I N A L C O U RT: W E AP O N S A N DM E T H O D S O F WA R FA R ERoger S. Clark*

Article 8 ( 2 )(b) of the Rome Statute treats as a war crime in international armed conict the use of poison or poisoned weapons, of asphyxiating, poi-

sonous or other gases, and of expanding bullets. Early drafts of the Statute in-cluded the use of these forbidden weapons in non-international as well as ininternational armed conict. They also included as crimes the use of chemi-cal, biological, and nuclear weapons (weapons of mass destruction). Proposals are circulating about revisiting these and other weapons issues at the Review Conference to be held in2010 , or in later reviews. This article examines the history of the negotiations culminating in Rome. It then turns to possibilities

for building on the Rome provisions both by expanding the prohibitions to

non-international conict and by adding to the list of prohibited weapons. As well as reconsidering weapons of mass destruction, the author suggests that at-tention should be given to such items as nondetectable fragments, blinding laser weapons, antipersonnel land mines, and cluster munitions. Ambiguities in the Rome Statutes amendment provisions that affect whether such addi-tions can be made applicable to all parties to the Statute, or only to those whoagree specically to them, are also addressed.

New Criminal Law Review , Vol. 12, Number 3, pps 366389. ISSN 1933-4192, electronicISSN 1933-4206. 2009 by the Regents of the University of California. All rights re-served. Please direct all requests for permission to photocopy or reproduce article contentthrough the University of California Presss Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/nclr.2009.12.3.366.

*Board of Governors Professor, Rutgers University School of Law, Camden, New Jersey. Professor Clark was a member of the delegation of Samoa in Rome. Any ideas ex-pressed herein should not be attributed to that government.

http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/25


4/25


5/25

announced at the Seventh Session of the Courts Assembly of StatesParties in November 2008 that it was planning to make proposals ad-dressing at least some of these items in 2009. It remains to be seen whereBelgium or other States Parties will take it.7

An account of the travails of the issue in Rome will set the stage (PartII of this article). It will be followed by an examination of the currently potential kinds of forbidden weapons for addition to the annex contem-plated by Article 8(2)(b)(xx), some of them not considered in Rome (PartIII of this Article). Finally, there is the knotty question of whether the rel-evant provision of Article 121 on amendments is that which requires a

seven-eighths majority of the parties to the Rome Statute to ratify or ac-cept the amendment (resulting in all parties being bound), or whether theapplicable provision is that in which only those parties who agree can bebound (Part IV, below). While that matter is not open and shut, I believethat the better argument is the seven-eighths one.

I I . N EG O TI ATI O N S I N R OME, J U N E 1 5 TO J U LY 17, 1 9 9 8 8

The draft Statute sent forward by the Preparatory Committee from New York to Rome included a complex set of options and options-within-options concerning proscribed weapons.9 In relation to breaches of the

B U I L D I N G O N A RT IC L E 8 ( 2) ( B) ( X X) O F T H E R O M E S TAT U TE | 3 6 9

7. An early, informal draft of the Belgian proposals is discussed in Roger S. Clark, TheWeapons Provision and Its Annex: The Belgian Proposals, in International Criminal

Justice (G. Roberto Bellilli ed., 2009). The proposals entail both expanding the list of pro-

hibited weapons and extending the proscription to include non-international as well as in-ternational armed conict. A later informal version, dated July 8, 2009, and sponsored by Argentina, Belgium, Burundi, Samoa, and Slovenia, has a narrower list of proposals, alsodealing with both international and non-international armed conict. It is expected that a formal proposal will be made at the November 2009 Session of the Assembly of StatesParties. (Document on le with author.) The author understands that Mexico will be mak-ing a formal proposal on nuclear weapons at the same time.

8. On the history, see Marlies Glasius, The International Criminal Court: A GlobalCivil Society Achievement, ch. 6 (2006). As Glasius notes, id. at 105, the use of weaponsof mass destruction will typically involve several examples of crimes against humanity and

war crimes. Nonetheless, it is important to include such weapons among the absolutely and specically banned.

9. Report of the Preparatory Committee on the Establishment of an InternationalCriminal Court, Draft Statute and Draft Final Act, at 2224, U.N. Doc. A/CONF.183/2/Add.1 (Apr. 3, 1998), reproduced in M. Cherif Bassiouni, The Statute of the International



6/25

laws and customs relating tointernational armed conict , these included var-ious lists, some of them including biological, chemical, and nuclear weapons,some including antipersonnel mines10 and blinding laser weapons.11 In addi-tion, there was a provision allowing for future developments that spoke of such other weapons or weapons systems as become the subject of a com-prehensive prohibition pursuant to customary or conventional internationallaw.12 This language, taken from a Canadian proposal, apparently leftit to the judges to determine when such a development had occurred.13

Comprehensive prohibition was not dened, then or later.14

The options also included what was usually described in Rome as the

generic formula. Originally introduced at the Preparatory Committee by Switzerland and New Zealand and supported by the InternationalCommittee of the Red Cross, it referred in general language to a proscrip-tion of three classes of weapons, those causing superuous injury, thosecausing unnecessary suffering, and those that are inherently indiscriminate.

The Preparatory Committee draft also included options relating to vi-olations of the laws and customs applicable innon-international armed

| N E W C R I M I N A L L AW R E V I E W | VO L. 12 | N O. 3 | S U M M E R 200 9 3 7 0

Criminal Court: A Documentary History, at 12425 (1998), (draft of War crimes, B.Other serious violations of the laws and customs of war applicable in international armedconict within the framework of international law, paragraph (o)). In Rome, Iraq made a proposal that was ignored to add depleted uranium weapons to the list. Iraq: ProposalRegarding Article 5, U.N. Doc. A/CONF.183/C.1/L.26 (June 29, 1998). Some believe these

were associated with Gulf War Syndrome. The United Nations General Assembly dis-cusses the issue annually and calls for reports from the Secretary-General under the itemEffects of armaments and ammunitions containing depleted uranium without yet taking

a substantive position. See most recently G.A. Res. 63/54 (Dec. 2, 2008).10. Based on the (then recently adopted) 1997 Convention on the Prohibition of theUse, Stockpiling, Production and Transfer of Anti-personnel Mines and on TheirDestruction. The Convention, adopted in Ottawa the previous year, was not yet in forceat the time of the Rome Conference. Many of those involved in the New York prepara-tions had been in Ottawa for the signing.

11. Based on the prohibition contained in Protocol IV of 1995 to the 1980 Conventionon Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects. The protocol may be found in Doc. CCW/CONF.I/16 Part I. The protocol had twenty-eight parties at thetime of the Rome Conference and now has ninety-three.

12. Supra note 9.13. On the later substantial transformation of this proposal, to become what Article

8(2)(b)(xx) refers to as an Annex, see infra at notes 1921, 37, and 7890.14. See infra at note 44.



7/25

conict . The options were to include nothing on the subject in relation tosuch conicts or to include something based on whatever was decided inrelation to international armed conict.15

A number of Pacic Island, African, and Islamic representatives spokefavorably of the generic formula in Rome. During the general debate in therst week of the Conference, many references were made to the need todeal adequately with weapons, including in particular nuclear weapons.The term weapons of mass destruction was even heard.16 An NGO groupcalling itself the Peace Caucus circulated several useful memos on disfa-vored weapons and there were numerous other informal papers around.

There were still adamant positions at both ends of the weapons spec-trum, especially on the nuclear issue. Opponents of nuclear weaponsfound themselves in the unexpected position of being offered the leader-ship of India, which wasalong with Pakistanone of two states thathad recently carried out nuclear tests. To the extent that I understood itsarticulated position, it is that India (i) needs the bomb as deterrenceagainst its dangerous neighbors, (ii) to make the point that, as the worldslargest democracy, it has to be taken seriously in world affairs, and (iii) to

encourage disarmament negotiations. India, then, became a proponent of an express mention of nuclear weapons, while the other nuclear powersclung rmly to the opposite position.


15. Preparatory Committee Draft Statute, supra note 9, D(l) at 28; Bassiouni, supra note 9, at 127. What ultimately became Article 8(2)(e) of the Rome Statute contains a listof crimes forbidden in non-international armed conict that track many (but not all) of those in paragraph (b) on international armed conict. The distinctions between what ap-

plies to the two types of conduct are slowly being erodedbut not entirely. See generally James G. Stewart, Towards a Single Denition of Armed Conict in InternationalHumanitarian Law: A Critique of Internationalized Armed Conict, 85 Intl Rev. Red.Cross 313 (2003). In its decision on the interlocutory appeal in theTadi c case, theInternational Criminal Tribunal for the Former Yugoslavia discussed at some length how customary law had expanded the application of the norms of the 1925 Geneva Protocol on

Asphyxiating Gases from international into non-international armed conict. Prosecutorv. Tadic, No. IT-94-1-AR72, Decision on the Defense Motion for Interlocutory Appeal on

Jurisdiction, 96236 (Oct. 2, 1995). The same transformation must have occurred forother forbidden weapons.

16. See Press Release, U.N. Ofce of Public Information, Use of Weapons of MassDestruction Should Be Included in Criminal Courts Denition of War Crimes, Say Several Conference Speakers, U.N. Doc. L/ROM/14 (June 18, 1998) (quoting statementsby Samoa, Bangladesh, Nigeria, and Womens International League for Peace andFreedom).



8/25

The rst semiformal sign of movement came on July 6, 1998 in a Discussion Paper17 dealing with many of the outstanding issues, prepared by the Bureau of the Committee of the Whole. Chaired by then-AmbassadorPhilippe Kirsch of Canada and also comprising representatives of Argentina,Romania, Lesotho, and Japan, the Bureau was ultimately responsible for try-ing to nd an acceptable package for the treaty that would resolve all is-sues in a deal most people could live with, if not applaud. The options weredown to three.

In addition to the generic one criminalizing materials of a nature tocause superuous injury or unnecessary suffering or which are inherently

indiscriminate (to which some phantom had added the seemingly in-nocuous words in violation of international humanitarian law, latertransformed in the nal version of the Statute to international law of armed conict), there were two specic formulations.

The rst of the specic versions began with the following chapeau(which made no reference to the inherently indiscriminate):

Employing the following weapons, projectiles and material and methods of warfare which are of a nature to cause superuous injury or unnecessary suffering:

This was followed by a short, precise, and closed list: poison or poisoned weapons; asphyxiating, poisonous, or other gases, and all analogous liq-uids, materials, or devices; bullets that expand or atten easily in the hu-man body; bacteriological (biological) agents; chemical weapons asdened and prohibited in the 1993 Convention on the subject.18 This op-tion (and the longer specic list to be mentioned in a moment) concluded

with the general category that now read:

Such other weapons and weapons systems as become the subject of a com-prehensive prohibition, subject to determination to that effect by the

Assembly of States Parties, in accordance with the procedure laid down inarticle [111] of this Statute.


17. Committee of the Whole, Discussion Paper by the Bureau, U.N. Doc. A/CONF.183/C.1/L.53 (July 6, 1998).

18. Most of the items on the list, with the possible exception of poisoned weapons andbullets that expand or atten in the human body, t the category of inherently indis-criminate as well as being of a nature to cause superuous injury or unnecessary suffer-ing. I can nd no public explanation for the omission of inherently indiscriminate in thiscollection.



9/25

This provision, based on the language introduced in New York by Canada,19 recognized the possibility of subsequent treaty or customary law developments, but now made their inclusion subject to some aspect of thereview procedure of the Statute,20 rather than being left to the judges.Developments in the general law would not be enough. Something more

would need to be done by the Assembly (or possibly a Review Conference).The determination procedure (lodged insecurely in an article then being formulated and tentatively numbered Article 111) was, of necessity perhaps,vague. It appeared, however, that it would be sufcient if the Assembly of States Parties or a Review Conference made the decision.21

The longer version of the weapons clause in the Discussion Paper in-cluded all those weapons in the short version, plus nuclear weapons, an-tipersonnel mines, and blinding laser weapons. Its chapeau began the same

way as the chapeau to the short version, but added the signicant words:or which are inherently indiscriminate, words that must characterize allnuclear weapons and, indeed, most of the weapons under discussion.

There was one further aspect of the Discussion Paper of July 6 thatcaused much mystication in the halls. The section of the denitions on

non-international armed conict no longer contained the paragraph re-ferring to weapons that had previously tracked the weapons paragraphthat related to international conict.22 Was this simply an oversight? Couldit really be that, on the basis of somea contrarioargument, it was now open to a ruler to gas or otherwise poison his revolting subjects? Thatquestion was never answered, nor was why the non-international provi-sion had been removed.

The Bureau returned to the fray on July 10 in what was now a BureauProposal 23 (as opposed to the earlier Discussion Paper). The weaponsclause was down to one proposal. Its chapeau was taken from the genericoption and the long version of July 6. It contained a reference to weaponsthat are inherently indiscriminate. The operative content was, however,


19. Supra note 13.20. See infra at notes 7890.21. It was not clear what majority might be required if consensus could not be reached

in the Assembly, and the drafts on amendments and Review Conferences did not at thatpoint (or later) deal with determinations as such.

22. Supra note 15.23. Committee of the Whole, Bureau Proposal, U.N. Doc. A/CONF.183/C.1/L.59 (July

10, 1998).



10/25

that of the short list of the Discussion Paper,24 beginning Employing thefollowing weapons. . . . The anti-weapons people were told that they had

won a great victory with the inclusion of the words inherently indis-criminate, but this was nonsense since all of the chapeaus in this version

were devoid of content; it was the actual list that counted. And nuclear weapons, antipersonnel mines, and blinding laser weapons had now dropped off the page. Some of the Canadian NGOs were a little sheepishabout the fate of the Ottawa Anti-personnel Mines Convention25 in this,but then it was not yet in force and it was debated whether its contents

were already covered by customary law.

Some states thought to respond to the July 10 version by striking mostof the chapeau, for fear that it might cause later mischief. Others wantedto nd a way to reinsert the generic option. One initiative by some of thePacic states at this stage was never circulated formally. I thought it hadpotential, although it did not generate a groundswell. It read:

Employing weapons, projectiles and material and methods of warfare whichare of a nature to cause superuous injury or unnecessary suffering or whichare [of a nature to strike military objectives and civilians without distinction][knowing that such employment is] in violation of international humani-tarian law.26

The rst of the bracketed provisions was aimed at a problem that hadappeared more starkly in Rome than in New York. Most of the nuclearpowers were gun shy of the term inherently indiscriminate. It seemed tobe language that the ICRC used routinely at the time.27 I had thought thatit was consistent with what all the judges agreed upon in theNuclear Weapons case. It seems a fair shorthand for weapons aspects of the types of indiscriminate attacks that are proscribed by Article 51 of 1977 ProtocolI to the Geneva Conventions.28 On the other hand, the nuclear powers are


24. Supra notes 1718.25. Supra note 10.26. Informal untitled document on le with the author.27. A more recent ICRC formulation seems to be by nature indiscriminate. See

Henckaerts & Doswald-Beck, supra note 5, at 244 (The use of weapons which are by na-ture indiscriminate is prohibited).

28. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating tothe Protection of Victims of International Armed Conict (Protocol I), art. 51(4) (1977).



11/25

correct that it is not exact treaty language. Thus, the language in the rstbracket of the Pacic proposal, which seeks to catch the essence of in-herently indiscriminate by using agreed treaty language, is taken exactly from the 1977 Protocol, Article 51(4).

The second bracketed text was aimed at an argument made most precisely by the United States among the nuclear powers. How was a commander/soldier to know in a particular case whether something was forbidden ornot? It was all too vague and thus contrary to the principle of legality. Ipass over the facts that much vaguer language in the Statute seemed topass muster, and that life is full of hard judgment calls (especially for lead-

ers)29

and note the solution: add a mens rea requirement of knowledge andsend the matter, at least in some aspects, to the General Part of theStatute.30 The United States itself had highlighted such a possibility by in-sisting that elements of crimes should be included in the Statute.Knowledge is dened in the general part as meaning awareness that a circumstance exists or a consequence will occur in the ordinary course of events.31 A requirement that the accused know that the use of the

weapons in the circumstances is in breach of humanitarian law might in-

volve complex questions of fact and law. A provision in the Statute on mis-take makes it clear that mistakes both of fact or law may go to denial of mens rea .32 Moreover, in the superior orders section of the Statute, a per-son acting pursuant to superior orders may be excused where that persondid not know that an order was unlawful and it was not manifestly un-lawful.33 I suspect that it will always be manifestly unlawful to use poisonor expanding bullets; sometimes other cases may be ambiguous. At allevents, the knowing proposal might have provided a useful framework for dealing with genuine inadequacies of information. Of course, there

were those who were for strict liability in all cases! Perhaps there wereother possibilities. As it left the PrepCom, the general part of the Draft


29. See, e.g., Rome Stat. art. 28, on Responsibility of commanders and other superiors.30. In particular, to the closely related provisions of Article 30 on mental element and

Article 32 on mistake. See Roger S. Clark, The Mental Element, in International CriminalLaw: The Rome Statute of the International Criminal Court and the Elements of Offences,12 Crim. L. F. 291, 30812 (2001).

31. Rome Stat. art. 30(3).32. Id. at art. 32.33. Id. at art. 33.



12/25


13/25

to the Conference? Once the amendments started coming thick and fast,the whole deal would unravel. . . . In a World of Hard Choices what wasa Poor Delegate to do?

Two weapons proposals were in fact circulated at this late stage beforethe Committee of the Whole. India proposed to add a reference to em-ploying weapons of mass destruction, i.e. nuclear, chemical and biological

weapons.38 It had apparently tried to obtain the support of the Non- Aligned Movement (NAM) for this. But the African Group (most of themNAM members) had an alternative proposal to return to the originalgeneric language.39 Some delegates thought that it was more important to

most NAM members to get a reference to aggression in the Statute thanto succeed on the weapons issue. Aggression was ultimately included by the Bureau as a crime within the jurisdiction of the Court, but was sub-

jected to a difcult requirement that it be further dened.40

In what became the denitive session in the Committee of the Whole,on the last evening of the Conference, Indias proposal (along with otherproposals it made) was the subject of a no-action motion. The proceduralmotion passed by a vote of 114 in favor, 16 against, and 20 abstentions.41

The African Group dropped its amendment and supported the package. A United States proposal aimed at radically amending the basic jurisdic-tional provisions of the Statute was also the subject of an overwhelmingly supported no-action motion.42 The Statute, including the short weaponsclause, was thereupon adopted amid a great outpouring of emotion.43


38. India: Proposed Amendments to the Draft Statute in Document A/CONF.183/C.1/L.76/Add.2 and Corr.1, U.N. Doc. A/CONF.183/C.1/L.94 (July 17, 1998).39. Group of African States: Proposal Regarding the Bureau Proposal in Document

A/CONF.183/C.1/L.59 and Corr. 1, U.N. Doc. A/CONF.183/C.1/L.59 and Corr. 1 (July 16,1998).

40. Rome Stat. art. 5(2). See Roger S. Clark, The Crime of Aggression, in The Emerging Practice of the International Criminal Court 709 (Carsten Stahn & Gran Sluiter eds.,2008).

41. Summary Records of the 42nd Meeting of the Committee of the Whole, in U.N.Diplomatic Conference of Plenipotentiaries on the Establishment of an InternationalCriminal Court (Rome Diplomatic Conference), Rome, Italy, June 15July 17, 1998, 361,U.N. Doc. A/CONF.183/13 (2002).

42. Id. at 362 (vote of 113 for17 against25 abstaining).43. Id. (adopted without a vote at this point). Later in the evening, in Plenary, the

Statute was adopted by a vote of 120 to 7 with 21 abstentions. Id. at 121.



14/25

I I I . W HAT M I G HT B E AD D E D BY A R EV I EW

C O N F E R E N C E

What might be the possible candidates for addition to the list of banned weapons in 2010 or beyond? A preliminary question is what to make of the words the subject of a comprehensive prohibition in Article8(2)(b)(xx). It must be the case that something that has become prohib-ited by customary law ts the category. It is sometimes endishly difcultto know when this is. Sometimes the answer is found by applying the pro-visions of a widely ratied treaty. I take it that merely adopting the text of a treaty on a subject is not enoughthere has to be signicant ratica-tion.44 But what is sufcient and who decides?45

With this caveat in mind, I turn to the possibilities. One could men-tion rst the trio omitted in 1998, namely chemical, biological, and nu-clear weapons.

Chemical weapons may in fact already be included in Article8(2)(b)(xviii), which proscribes [e]mploying asphyxiating, poisonous orother gases, and all analogous liquids, materials or devices.46 This lan-

guage, taken from the 1925 Geneva Protocol for the Prohibition of the Usein War of Asphyxiating, Poisonous or other Gases, and of BacteriologicalMethods of Warfare,47 is regarded by some48 as covering all the banned


44. See Michael Cottier, Article 8(2)(b)(xx): Employment of Means or Methods of Warfare Included in an Annex to This Statute, in Commentary on the Rome Statute of theInternational Criminal Court: Observers Notes, Article by Article at 423, 424 (OttoTriffterer ed., 2nd ed. 2008) [hereinafter Triffterer]:

A comprehensive prohibition may exist under customary international law as evidenced by theopinio juris and practice of States, or under conventional international law, in particular whena treaty prohibiting the employment of a specic weapon has widely been ratied. In bothcases, almost universally accepted treaties will generally be clear evidence of a comprehensiveprohibition. It is not necessary that the treaty prohibiting this weapon be universally ratiedor that all States without exception have ratied such treaty. The qualied majority of StatesParties at a Review Conference or Assembly of States Parties will determine which weaponscan be considered as subject to a comprehensive prohibition when considering adding further

weapons under the jurisdiction of the ICC.

45. See infra at notes 7982 on the latter part of the question.46. Rome Stat. art. 8(2)(b)(xvii).47. 94 L.N.T.S. 65 (1925).48. See Michael Cottier, Article 8(2)(b)(xviii): Employing Gases and Analogous Liquids,

Materials or Devices, in Triffterer, supra note 44. Bear in mind, though, that in the ICJ Advisory Opinion the Court held that this language from the 1925 Geneva Protocol did not



15/25

chemical agents that are proscribed by the later and perhaps more care-fully drafted 1993 Chemical Weapons Convention.49 The 1993 Conventionhad 188 parties by May 2009, including India, Japan, and all ve of thepermanent members of the Security Council. Chemical weapons aresurely a prime candidate for being regarded as the subject of a compre-hensive prohibition, and it would appear sensible to put back what wasdeleted in Rome. The symbolism is important and any doubts about thepresent coverage can be removed.

Whatever is to be made of the current status of chemical weapons in theStatute,50 with the deletion of the language referring to bacteriological

(biological) agents or toxins for hostile purposes or in armed conict,51

it


encompass nuclear weapons. Nuclear weapons, it seems, do not poison. Their primary aimis to incinerate people or blow them to smithereens. That is not forbidden. Perhaps by sim-ilar sophistry chemical weapons liquidate or dissolve people rather than poisoning orasphyxiating them!

49. Convention on the Prohibition of the Development, Production, Stockpiling andUse of Chemical Weapons and on Their Destruction, 1974 U.N.T.S. 45 (1993). Article II

of the Convention contains a detailed denition of what is banned. Drafts that were onthe table until the very end of the Rome Conference contained a reference to chemical

weapons as dened and prohibited by the 1993 Convention on the Prohibition of theDevelopment, Production, Stockpiling and Use of Chemical Weapons and on TheirDestruction. See Preparatory Committee Draft Statute, supra note 9, at art. 5, WarCrimes, (o), Options 1(v), 2(v), and 4(v), U.N. Doc. A/CONF.183/2/Add.2 (Apr. 3, 1998),reproduced in Bassiouni, supra note 9, at 119, 124.

50. Supra note 48.51. Supra notes 3637, art. 5, War Crimes, (o), Options 1(iv), 2(iv), and 4(iv).

Bacteriological is the language in the 1925 Geneva Protocol that extended the prohibi-tion of asphyxiating gases to the use of bacteriological methods of warfare without fur-ther explanation. Bacteriological (biological) is the language of the 1972 Convention onthe Prohibition of the Development, Production and Stockpiling of Bacteriological(Biological) and Toxin Weapons and on Their Destruction, 1015 U.N.T.S. 163 (1972). The1972 Convention, article I, contains an undertaking by each party never in any circum-stances to develop, produce, stockpile or otherwise acquire or retain

(1) Microbial or other biological agents, or toxins, whatever their origin or method of pro-duction, of types and in quantities that have no justication for prophylactic, protectiveor other peaceful purposes;

(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hos-tile purposes or in armed conict.

It was the last phrase of the second paragraph of this that was taken up in the Rome drafts(apparently combined with the 1925 Protocols prohibition of usewhich is not specif-ically condemned in the later Convention). Given the threshold requirement of an



16/25


17/25

The ban on antipersonnel mines, the subject of some discussion atRome,56 was fairly recent in 1998, but the relevant treaty 57 is now widely ratied (closing in on 160 parties) and perhaps provides a basis for theproposition that the prohibition is now comprehensive. The down sideof the argument is that while the parties include such powers as France,

Japan, and the United Kingdom, they do not include China, India, theRussian Federation, and the United States.

A package of other possibilities, most of which had some discussion inRome, comes from the 1980 Convention on Prohibitions or Restrictionson the Use of Certain Conventional Weapons which may be deemed to

be Excessively Injurious or to have Indiscriminate Effects58

and its ve pro-tocols. The Convention itself is a framework convention; the meat is inthe protocols. Parties to the Convention must agree to be bound by atleast two of the rst three protocols that were adopted along with the mainConvention in 1980: Protocol I on Non-Detectable Fragments, ProtocolII on Prohibitions or Restrictions on the Use of Mines, Booby-Traps andOther Devices (amended in 1996), and Protocol III on Prohibitions orRestrictions on the Use of Incendiary Weapons. Added subsequently were

Protocol IV on Blinding Laser Weapons, adopted in 1995,59

and ProtocolV on Explosive Remnants of War, adopted in 2003.60 The original frame-

work Convention and Protocols applied only to the use of the prohibited weapons in international armed conict. An amendment in 2001,61 to


56. Supra notes 10 and 25.57. The 1997 Convention on the Prohibition of the Use, Stockpiling, Production and

Transfer of Anti-personnel Mines and on Their Destruction, supra note 10. Information

from the Depositary indicated 156 parties in May 2009more than the parties to theGenocide Convention (140) and the Torture Convention (146), and only a few behindthe Covenants on Human Rights and the 1977 Geneva Protocols. On the other hand,there are some major states, including three Permanent Members of the Security Council,that have not become parties.

58. 1324 U.N.T.S. 137 (1980).59. Doc. No. CCW/CONF.I/16 Part I (Oct. 13, 1995).60. Doc. No. CCW/MSP/2003/2 (Nov. 27, 2003). At the time of the adoption of this

protocol, the United States asserted that a political document on the subject would be a better way forward than a treaty. It added: However, in responding to the wishes of otherCCW parties, including many of our allies and friends, the U.S. decided not to block a consensus on a legally binding protocol. Sean D. Murphy, United States Practice inInternational Law 20022006, at 363 (2006).

61. Amendment to the Convention on Prohibitions or Restrictions on the Use of CertainConventional Weapons which may be deemed to be Excessively Injurious or to have



18/25

which there are now sixty-eight parties, extended its prohibitions to non-international armed conict.

At the time of writing (May 2009), the United Nations Secretary-General, as depositary, reports that there are 108 parties to the Conventionitself,62 107 to Protocol I, 92 to Protocol II, as amended, 102 to ProtocolIII, 93 to Protocol IV, and 58 to the most recent protocol. While the ac-tual numbers of parties may not be overwhelming, it should be noted thatthe preamble to the Convention emphasizes the desirability that all Statesbecome parties to this Convention and its annexed protocols, especially the militarily signicant States. It thus places some signicance on the ac-

tions of the militarily signicant States. Most of the large powers, in-cluding the ve permanent members of the Security Council, are indeedparties to the framework Convention and the rst four protocols and tothe amendment to the framework Convention extending protection tonon-international armed conict.63 Protocol V does not, however, includeamong its parties China or the United Kingdom.64

A reasonable case can thus be made that Protocols I through IV, at least,represent a comprehensive prohibition within the meaning of Article

8(2)(b)(xx) and that the prohibition extends to acts in non-internationalarmed conict. Protocol V perhaps awaits developments.65

A point needs to be made about the criminal status of the weaponsin the various sources that have just been discussed. The Chemical

Weapons Convention does require national implementation including


Indiscriminate Effect, Doc. No. CCW/CONF/II/2 (Dec. 21, 2001). This amendment ap-plied to the rst four protocols and left it open to the drafters of subsequent protocols tomake individual decisions about application. Protocol V also extends to non-internationalarmed conict.

62. All of the 108 except Morocco and Senegal are parties to Protocol I; all except Israel,Morocco, Monaco, Republic of Korea, Turkey, and Turkmenistan are parties to ProtocolIII. Protocol II is superseded by its later amendments and ninety-two states are parties tothat protocol as amended.

63. The United States was very active up to and in Rome in extending protections tonon-international armed conict. See Theodor Meron, War Crimes Law Comes of Age, 92

Am. J. Intl L. 462 (1998).64. The United States deposited its instruments of ratication to Protocols III, IV, and

V and the non-international armed conict amendment in January 2009.65. It may be worth considering adding its prohibitions to the treaty by a different

process. See infra note 90.



19/25

enacting penal legislation66 in respect of actions by its nationals, on itsterritory or in any other place under its jurisdiction.67 As in the case of allof the other instruments under consideration, there is no provision onuniversal jurisdiction, the Convention relying instead on nationality andterritorial jurisdiction. The Bacteriological Weapons Convention has a suppression obligation that does not specically use the term penal butseems to be of like effect.68 Discussions of the legality of nuclear weaponsemphasize state responsibility, but criminal responsibility must follow.69

Similarly, the 1980 Convention and its protocols are drafted mostly on thebasis that they represent obligations on statesreferences to criminal re-

sponsibility are thin. Only Protocol II, on Mines, Booby-traps and other


66. Chemical Weapons Convention, supra note 49, at art. VII(1). The obligation tocriminalize must include all the activities in which the state parties undertake never un-der any circumstances to engage, namely:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer,directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparations to use chemical weapons;(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited toa State Party under this Convention.

Chemical Weapons Convention art. I(1). For purposes of the Rome Statute, it will be nec-essary to establish a nexus to an actual armed conict. Most of the activities in (d) will becaptured by article 25(3) of the Rome Statute.

67. Chemical Weapons Convention, supra note 49, at art. VII(1). Professor Swartcomments:

Pursuant to paragraph 1 [of Article VII], the obligation to enact penal legislation refers to theactivities summed up in Article I, paragraph 1, of the Convention. Some of these activities areinternational crimes independent of the Chemical Weapons Convention. This is, in particu-lar, the case for the use of chemical weapons in international armed conicts and, it must now be assumed, also for their use in internal armed conicts. The character of these activities asinternational crimes derives from treaties [Article 23 (a) of the Hague Regulations and the 1925Geneva Protocol] as well as from customary international law. Other activities, in particularthe development, production, acquisition, stockpiling, retention and transfer of chemical

weapons, are international crimes only by virtue of the Chemical Weapons Convention.(Some footnotes omitted.)

Bert Swart, The Chemical Weapons Convention and International Cooperation inCriminal Matters, in Treaty Enforcement and International Cooperation in CriminalMatters: With Special Reference to the Chemical Weapons Convention 21, 21 (Rodrigo

Yepes-Enrquez & Lisa Tabassi eds., 2002).68. Bacteriological Weapons Convention, supra note 51, at art. IV.69. Supra note 4.



20/25

Devices, as amended, provides in its Article 1470 for penal sanctions forbreach. The Anti-personnel Mines Convention71 provides for measures in-cluding penal measures on a territoriality and nationality basis. All of theseprohibitions are, in short, open to the argument that they are appropriatefor penal suppression in an international tribunal like the ICC, notwith-standing that they do not themselves provide for universal jurisdiction.72

Some different considerations apply to the recently concludedConvention on Cluster Munitions.73 Cluster munitions are conven-tional munitions that are designed to disperse or release explosive submu-nitions each weighing less than twenty kilograms.74 In language adapted

from the Chemical Weapons Convention, this Convention provides thatthe parties undertake never under any circumstances to use cluster muni-tions; develop, produce, otherwise acquire, stockpile, retain, or transfer toanyone, directly or indirectly, cluster munitions; assist, encourage, or in-duce anyone to engage in any activity prohibited to a State Party under theConvention.75 Each Party is also required to take all appropriate legal, ad-ministrative, and other measures to implement the Convention includ-ing the imposition of penal sanctions to prevent and suppress any activity

prohibited to a State Party undertaken by persons or on territory under its jurisdiction or control.76


70. Amended text at http://disarmament.un.org/treatystatus.nsf. Article 14 is headedCompliance.

71. Supra note 10, at art. 9.72. See supra note 4 and Prosecutor v. Galic, No. IT-98-29-A, Judgment (Dec. 5, 2006)

(spreading terror among the civilian population held to be a breach of customary law giv-

ing rise to individual criminal responsibility by a majority of the Appeals Chamber of theICTY, even though that offense, while contemplated by Geneva Conventions andProtocols, is not subject to grave breach regime thereof ) (case arising from the siege of Sarajevo).

73. Diplomatic Conference for the Adoption of a Convention on Cluster Munitions,Dublin, May 1930, 2008, Convention on Cluster Munitions, Doc. No. CCM/77 (May 30, 2008), available at http://www.clusterconvention.org/downloadableles/ccm77_english.pdf. The Convention was signed by ninety-four states at Oslo on December 3, 2008. Fourstates, the Holy See, Ireland, Norway, and Sierra Leone also ratied it on that date andthree more by May 2009. Thirty ratications or accessions are required to bring it intoforce.

74. Cluster Munitions Convention, id. at art. 2. (There is greater detail in the deni-tion, not necessary for present purposes.)

75. Id. at art. 1.76. Id. at art. 9.



21/25

If the earlier analysis that a comprehensive prohibition requires morethan the adoption of a Convention is correct,77 then it is too soon to addthe cluster munitions prohibitions to the Rome Statute through Article8(2)(b)(xx). The situation is similar to that of Protocol V to theConventional Weapons Convention. Any effort to add it to the Statute

would have to be through the general amending power of Article 121(5)about to be discussed and would be applicable only to those states thatagree to the amendment in the future.

A. Effecting the Amendments

As with the provision on aggression,78 the potential addition to theStatute of items for an Annex on weapons and methods of warfare, con-templated in Article 8 of the Statute, raises some awkward questions con-cerning the appropriate procedures to be followed in effecting the relevantamendments. It will be recalled that the concluding words of Article8(2)(b)(xx) read: provided that such weapons, projectiles and materialand methods of warfare are the subject of a comprehensive prohibition

and are included in an annex to this Statute, by an amendment in accor-dance with the relevant provisions set forth in articles 121 and 123.

There are two issues here: how does one determine that there is a com-prehensive prohibition and what exactly are the relevant provisions inarticles 121 and 123?

As to the rst issue, Article 8(b)(xx) does not say how it is to be estab-lished that there is a comprehensive prohibition. Universality is seldomthe lot of multilateral treaties,79 and something short of that must beenough.80 But, in the absence of universality, who makes the call? It mustbe the case that the Assembly of States Parties or a Review Conference


77. Supra note 44. See also infra note 90 on possible implications for prohibitions thatare not yet comprehensive.

78. I have explored many of the issues concerning aggression (including the relevantpreparatory work of Article 121) in Roger S. Clark, Ambiguities in Articles 5(2), 121 and 123of the Rome Statute, 41 Case W. Res. J. Intl L. 413 (2009). See also discussion in Special

Working Group on the Crime of Aggression, The Hague, November 1422, 2008, Report,at 14, Doc. ICC-ASP/7/SWGCA/1* (Nov. 26, 2008).

79. In August 2006, the International Committee of the Red Cross announced that the1949 Geneva Conventions had acceptance by all states. Such a situation is very rare.

80. See Cottier, supra note 44.



22/25

would, at least in the rst instance, decide that for itself, either explicitly (by so determining) or implicitly (by agreeing to add something to the,now empty, Annex). Procedurally, this would require a two thirds-major-ity of (all) States Parties if consensus cannot be reached.81 Perhaps this isonly tentative in the sense that, if some majority of formal acceptances isrequired,82 then it will be established denitively only when the requisitemajority has deposited the appropriate instruments of approval.

As to the relevant provisions, the focus must be on Article 121, whichrelates to Amendments, and on Article 123, headed Review of theStatute. The latter contemplates Review Conferences that are to con-

sider any amendments to this Statute. In essence, these two articles havethe same effect, the action provisions of Article 121 being incorporated by reference in Article 123. Those provisions of Article 121 assert:

3. The adoption of an amendment at a meeting of the Assembly of StatesParties or at a Review Conference on which consensus cannot bereached shall require a two-thirds majority of States Parties.

4. Except as provided in paragraph 5, an amendment shall enter into forcefor all States Parties one year after the instruments of ratication or ac-ceptance have been deposited with the Secretary-General of the UnitedNations by seven-eighths of them.

5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter intoforce for those States Parties which have accepted the amendment one yearafter the deposit of their instruments of ratication or acceptance. In re-spect of a State Party which has not accepted the amendment, the Courtshall not exercise its jurisdiction regarding a crime covered by the amend-ment when committed by that State Partys nationals or on its territory.

A fundamental issue is whether any additions to the Annex are gov-erned by paragraph 4 or by paragraph 5. The differences are stark: anamendment to which paragraph 4 applies becomes effective for all partiesonce seven-eighths agree; until then it binds no one. If paragraph 5 applies,the provision becomes effective only to those States that agreebeginning

with the rst one onwards.83


81. Rome Stat. art. 121 (3), discussed infra note 85.82. This may or may not be the case, see infra at notes 8590.83. There are some difcult questions if paragraph 5 is the relevant procedure about

how such an amendment applies to a Security Council referral. Is it enough that theReview Conference acted under Article 121(3)? Is at least one ratication needed? It is hard



23/25

Some general interpretative considerations leap off the page. What isthe effect of the phrase in accordance with as used in Article8(2)(b)(xx)?84 Does it mean that all of Article 121 applies in the same man-ner as it would if a new prohibition were being added as an amend-ment to the Statute? On the plain language of Article 8(2)(b)(xx) a provision on weapons is obviously an amendment to the Statute in somerespects. It needs to be adopted by the Assembly or a Review Conferencepursuant to Article 121, paragraph 3.85 So far, so good. Is it, however, anamendment to which paragraph 4 applies or one to which paragraph 5applies? At the very least, it gives content to a now empty (and indeed

completely notional) Annex.86

Is that amending Article 8 by creating a new crime (or giving birth to a nascent one)? Certainly, it is not an amend-ment to Article 5,87 6, or 7. However, is it an amendment to Article 8 ?Amendment normally implies that something is being changed or altered.One could contend strongly that it is not necessary to change the word-ing or effect of Article 8 in order to fulll the expectations of the drafters.

Article 8(2)(b)(xx) is arguably an example of a facilitative or enabling


to make an argument based on the plain language that more is required. For the compa-rable issue in respect of aggression, see discussion in Report of the Special Working Groupon the Crime of Aggression, supra note 78, at 89.

84. It will be noted that there is no verb before the words in accordance with. (Thesame is true in at least the French and Spanish texts of the Statute.) One might have ex-pected something like approved or agreed upon. In the case of Article 5(2) on aggres-sion, the language is once a provision isadopted in accordance with. (Emphasis added.)For a possible argument based on this, see infra note 85.

85. Paragraph 3 corresponds with the default rule for adoption of a text of a treaty at an

international conferencea two-thirds vote unless otherwise agreed. The use of the iden-tical word adopted both in Article 5(2) and in Article 121(3) of the Statute opens up thepossibility that nothing more than adoption by the Review Conference is required forcompleting the denition of aggression. Most participants in the process resist that inter-pretation and insist that more is needed; whether it is paragraph 4 or paragraph 5 that isthe more is hotly debated. The argument for applying either paragraph 4 or paragraph 5has to accept that adopted is used in different senses in Articles 5(2) and 121(3), the lat-ter being narrower. The argument for only approval by the Review Conference is harder tomake in the case of the Annex, since the word adopted is not there in Article 8(2)(b)(xx)to base it upon.

86. It does not yet exist at allnot even as an empty page headed Annex.87. It does not add a new category of offenses to the list in Article 5the category (war

crimes) and a subcategory (forbidden weapons) already exist. Adding, say, a new category of terrorist or drug offenses to the Statute, on the other hand, would entail an amend-ment to Article 5 and thus apply only to the territory or nationals of those who accept it.



24/25


25/25

These are knotty questions that need to be resolved. Whether para-graph 4 or paragraph 5 of Article 121 applies is the fundamental questionabout the relevant provisions of the Article. Fathoming the answer tothis will resolve whether a provision in the annex can be made to apply erga omnes (by a difcult-to-attain supermajority) or whether it will apply by a (hopefully) slowly increasing collection of States that make individ-ual decisions to go ahead. Frankly, the policy questionwhether it is bet-ter to hold out for all, or to take what acceptances can be achievedisitself a conundrum!


it might not be possible to treat such matters as paragraph 5 opt-in possibilities for allstates and agree to a text on such a basis. After all, this is what was done with Protocol V,and by those who turned up at the meetings in Dublin and Oslo to nalize the Munitionstreaty.

building on art. 8(2)(b)(xx) of the rome statute of the international criminal court: weapons and...

Documents