Per la Pau / Peace in Progress

The Centre for International
Humanitarian Law Studies of
the Spanish Red Cross
(CEDIH)

In July 2009, the Centre for International Humanitarian Law Studies of the Spanish Red Cross (CEDIH) produced a proposal for amendments to the Statute of the International Criminal Court concerning weapons and projectiles, which we reproduce here. This can be compared with the current wording of the Statute at www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm.

I. INTRODUCTION

Article 8, 2 b), section xx of the Rome Statute of the International Criminal Court says "war crimes" are: "Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts":

xx. Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

In view of the imminent (Uganda, May 2010) Review Conference of States Parties to examine the amendments to the Rome Statute, this study and proposal is limited to the corresponding Amendments concerning weapons and projectiles, the use of which in international armed conflicts constitutes a war crime, and the contributions of other Amendments relating to the same subject in the sphere of non-international armed conflicts.

During the production of this report, the following basic criteria have been taken into consideration:

1. The existence or otherwise of a "complete prohibition" of a weapons or projectiles system in any International Convention or Protocol in force.
2. The existence or otherwise of international humanitarian customs. The publication "Customary International Humanitarian Law" (J.M. Henckaerts and L. Doswald-Beck, CICR, Buenos Aires, 2007) has been used for reference purposes.
3. The number of States Parties in the Rome Statute of the International Criminal Court, which are also Party to the specific Convention or Protocol that prohibits the weapon or projectile concerned.
4. The description of the typical action to be incriminated, specifying the employment of such a weapon in the context of an armed conflict, without considering other actions that are also prohibited in some Conventions, such as "the development, production, storage and transfer" or the breach of the "obligation to destroy them", as these actions are not always carried out (or in the case of destruction, are omitted) "in the context of an armed conflict", and therefore sometimes cannot be included in a war crime..

II. AMENDMENT NO. 1, RELATING TO WAR CRIMES COMMITTED IN INTERNATIONAL ARMED CONFLICTS

A. Study of the Proposal for additional Amendment to article 8, paragraph 2, b. War crimes committed in international armed conflicts

1. Chemical weapons (addition of a section xxvii)

The Paris Convention of 13 January 1993, on the prohibition of production, development, use, storage and transfer of chemical weapons and their destruction has been ratified by 188 States. Only 6 States (Angola, Egypt, the Democratic People's Republic of Korea, Myanmar, Somalia and Syria) are not party to the Convention.

All the 110 States Parties of the Statute of the International Criminal Court are Parties to the Paris Convention on chemical weapons. The prohibition on the use of chemical weapons is also undoubtedly part of international humanitarian custom. This custom includes the prohibition of their use in non-international armed conflicts.

2. Biological and toxin weapons (Addition of a section xxviii)

The London, Moscow and Washington Convention of 10 April 1972 prohibits the development, production and storage of bacteriological (biological) and toxin weapons and makes their destruction compulsory. The purpose of this Convention is the complete exclusion of the possibility of bacteriological (biological) agents and toxins being used as weapons (Preamble to the 1972 Convention).

163 States are currently Parties to the Convention. Of the 110 Parties States in the Rome Statute, only 14 (Andorra, Burundi, Central African Republic, Chad, Comoros, Djibouti, Guyana, Liberia, Malawi, Marshall, Namibia, Nauru, Samoa and Tanzania) are not Parties to the 1972 Convention. Furthermore, analysis of the Practice of both the States Parties and non-Parties to the aforementioned 1972 Convention shows that the prohibition of biological weapons is part of customary international law. Not only is there a consolidated international custom, but this custom also includes the prohibition of their use in non-international armed conflicts, with no existing practice to the contrary.

4. Excessively injurious conventional weapons or those with indiscriminate effects 

This criminalization is proposed for inclusion in article 8. 2. b) of the Rome Statute, concerning the use of some weapons prohibited by the Geneva Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects, of 10 October 1980.

Non-detectable fragments (addition of a section xxix)

Protocol I of the aforementioned Convention of 1980 prohibits the use of any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays. Although 108 States are Parties to this Protocol, this prohibition is considered part of international customary humanitarian law applicable both in international and non-international armed conflicts, and causes no disagreement on its meaning in practice among States, including those that are not Parties to this Protocol.

The majority of the 110 States Parties to the Statute of the International Criminal Court are also Party to Protocol I of 1980 and 34 States are not.

However, it can be concluded that no official practice contrary to this prohibition has been found, and the use of a weapon that lacks any appreciable military use and causes unnecessary suffering has not been demanded.

Blinding laser weapons (addition of a section xxx)

Protocol IV of the 1980 Convention, approved in Vienna on 13 October 1995, prohibits the prohibits the use of laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices. It is therefore a complete prohibition on this type of weapons. This Protocol was approved by consensus.

94 States are Parties to this Protocol. The majority of the 110 States Parties to the Statute of the International Criminal Court are also Party to Protocol IV of 1995, although 42 States are not. However, they would be obliged by a prohibition that at present exists in customary international law.

B. Conclusion on the proposal for an amendment to article 8.2.b) of the Rome Statute

Amendment no. 1

Additions of the following sections are proposed for article 8, 2, b):

xxvii. Use of the chemical weapons regulated by the Paris Convention of 13 January 1993, on the prohibition of the production, development, use, storage and transfer of chemical weapons and their destruction.

xxiii. Use of the biological and toxin weapons regulated by the Geneva protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare of 17 June 1925, and by the London, Moscow and Washington Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction.

xxix. Use of weapons which lead to injury by means of fragments in the human body that are non-detectable by X-rays, prohibited in Protocol I of the Geneva Convention of 10 October 1980, on prohibitions and restrictions of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects.

xxx. Use of laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, prohibited by Protocol IV, approved in Vienna on 13 October 1995, of the Geneva Convention of 10 October 1980, on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects.

III. AMENDMENT NO. 2, CONCERNING WAR CRIMES COMMITTED IN NON-INTERNATIONAL ARMED CONFLICTS

A. Study of the Proposal for the additional Amendment to article 8, paragraph 2, e. War crimes committed in non-international armed conflicts

1. Amendment relating to the use of poison, asphyxiating gases and certain projectiles (addition of sections xiii, XIV and xv)

The proposal is to include art. 8. 2. e), which refers to war crimes committed in non-international armed conflicts, three new sections numbered xiii, xiv and xv, after the crimes currently included. These proposals cover the use of poison and poisoned weapons (xiii), the use of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices (xiv) the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (xv).

The proposed text is identical to the current text in force applicable to international armed conflicts, stipulated in the Rome Statute in Article 8.2.b), sections xvii, xviii and xix, which presented no problems and obtained approval for its preparation at the Rome Diplomatic Conference.

2. Amendment relating to chemical and biological weapons (addition of sections xvi and xvii)

This also refers to non-international armed conflicts and proposes adding sections xvi (biological weapons and toxins) and xvii (chemical weapons) to article 8.2. This is consistent with the proposal for Amendment number 1 to the Statute, which contains identical incriminations in the context of international armed conflicts.

3. Amendment relating to excessively injurious conventional weapons and those with indiscriminate effects (addition of sections xviii and xix)

The contents with regard to international armed conflicts are the same as the amendment considered previously, but it refers to non-international armed conflicts and consists of a proposal for the addition of the appropriate sections (xviii and xix) to article 8.2. e) of the Rome Statute.

Support for the amendment is proposed only in terms of its reference to fragments that are non-detectable in the human body (Protocol I of 1980), including section xviii) and to blinding laser weapons (Protocol IV of 1995), which would be section xix), with these added as further sections to article 8.2. e) of the Statute.

B. Conclusion on the Proposal for the additional Amendment to article 8, paragraph 2, e. War crimes committed in non-international armed conflicts

Amendment no. 2

Additions of the following sections are proposed for article 8, 2, e):

xiii. Use of poison or poisoned weapons.

xiv. Use of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices.

xv. Use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.

xvi. Use of the chemical weapons regulated by the Paris Convention of 13 January 1993, on the prohibition of the production, development, use, storage and transfer of chemical weapons and their destruction.

xvii. Use of the biological and toxin weapons regulated by the Geneva protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare of 17 June 1925, and by the London, Moscow and Washington Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction.

xviii. Use of weapons which lead to injury by means of fragments in the human body that are non-detectable by X-rays, prohibited in Protocol I of the Geneva Convention of 10 October 1980, on prohibitions and restrictions of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects.

xix. Use of laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, prohibited by Protocol IV, approved in Vienna on 13 October 1995, of the Geneva Convention of 10 October 1980, on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects.