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22 May 2010

Prohibited Weapons and the Belgian Amendment: Symbolic, but of What?

Backgrounder
One of the three proposed amendments to the Rome Statute on the agenda of the Review Conference has been submitted by Belgium, and concerns the prohibition of the use of certain prohibited weapons during non-international armed conflict. The Belgian proposal adds the following to article 8(2)(e) of the Statute:
xiii) Employing poison or poisoned weapons;
xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
xv) Employing 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.
Belgium has also prepared a draft amendment to the Elements of Crimes which corresponds to the three new provisions of the Statute.
These three paragraphs correspond exactly to those in article 8(2)( b)(xvii), (xviii) and (xix) of the Statute as it was adopted in 1998. Article 8, which defines the war crimes that may be prosecuted by the Court, is divided into two broad categories, depending upon whether the crimes were committed in an international or a non-international armed conflict. Traditionally, the law of armed conflict was not as advanced with respect to non-international armed conflict, reflecting resistance by States to the encroachment of international law in areas that had historically been part of their own sovereign authority, and the failure of the Rome Statute to adopt provisions governing the use of prohibited weapons in non-international armed conflict is a reflection of this.
The original draft Statute of the International Criminal Court, adopted by the Preparatory Committee in April 1998 in advance of the Rome Conference, contained parallel provisions for prohibited weapons in non-international armed conflict corresponding to those for international armed conflict. These texts were quietly dropped during the Rome Conference, despite objections from some States (see, e.g., UN Doc. A/CONF.183/C.1/SR.34, paras. 4 (Sweden), 108 (Australia)).
The three categories of prohibited weapons correspond to historic categories and are contemplated by such instruments as the 1925 Geneva Protocol, the 1899 Hague Declaration on Prohibited Bullets, and articles 23(a) and (e) of the 1907 Hague Regulations, as well as earlier instruments, such as the St. Petersburg Declaration of 29 November 1868. The 1919 Commission on Responsibilities of the Paris Peace Conference listed two categories of war crime falling within the rubric of employment of prohibited weapons: ‘use of deleterious and asphyxiating gases’ and ‘use of explosive or expanding bullets, and other inhuman appliances’. The Statute of the International Criminal Tribunal for the former Yugoslavia establishes jurisdiction over the war crime of ‘employment of poisonous weapons or other weapons calculated to cause unnecessary suffering’, which is a broad formulation capable of addressing a range of weapons (including, arguably, nuclear weapons, anti-personnel mines and cluster munitions) but there have been no prosecutions under the provision. It does not seem possible to prosecute the use of prohibited weapons as such under the statutes of the ad hoc tribunals for Rwanda and Sierra Leone.
The assumption that prohibited weapons provisions can be transposed automatically from international to non-international armed conflict may be subject to some question. Typically, civil war may have features that are different in nature from what is found on the international battlefield. For example, Professor Fran├žoise Hampson has pointed that security forces may use so-called ‘dum-dum’ bullets or analogous ammunition in riot control situations precisely in order to avoid collateral damage to civilians. Although it is today unlikely that armies engaged in international armed conflict still use such weapons, the case may not be the same with respect to security forces at the domestic level. See her report to the Council of Europe, para. 32.
In 2005, when British police murdered an innocent Brazilian national in the London Underground because they suspected he was a terrorist, they used ‘dum dum’ or hollow tipped bullets, apparently with the purpose of avoiding unnecessary death or injury to innocent bystanders.
In generally, nevertheless, the categories of weapons that feature in the Belgian amendment rarely if ever figure in modern warfare. The main argument for the amendment at the Review Conference is not the importance of filling a loophole in the Statute but rather a quest for consistency and parallelism. Perhaps this is a way of stating that the law applicable to non-international armed conflict is largely identical to that of international armed conflict, and the Belgian proposal spoke of the objective of ‘standardizing rules regarding situations of international armed conflict and situations of non international armed conflict’. According to a statement by the International Committee of the Red Cross at the November 2009 session of the Assembly of States Parties, 'what is inhumane, and consequently proscribed in international armed conflict, cannot but be inhumane and inadmissible in a non-international armed conflict'.
But to the extent the amendment is driven by such considerations, which are essentially symbolic, its adoption (which seems hardly in doubt) will manifest the inability of the Rome Statute to deal with prohibited weapons in a meaningful way. Far from signaling an accomplishment of the Statute, and a manifestation of progressive development of the law of armed conflict (it will no doubt be hailed as such by many), the Belgian amendment does little more than highlight embarrassing shortcomings of the Rome Statute in this respect, reflecting the primitive state of intenrational law in this area.
Belgian had initially proposed three amendments. The other two were dropped at the November 2009 session of the Assembly of States Parties for lack of broad consensus (see the report of the Working group, para. 33). The amendments abandoned by Belgium concerned weapons that have been of genuine concern in armed conflict in recent times, such as blinding laser weapons and anti-personnel mines.
The only really important provision dealing with prohibited weapons is article 8(2)(b)(xx). It states the more general principle condemning all weapons that are ‘of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’. There will be no amendment at the Review Conference to extend article 8(2)(b)(xx) to non-international armed conflict. This provision sets out a rule of customary international law which was confirmed in the famous 1996 Advisory Opinion of the International Court of Justice on nuclear weapons. However, article 8(2)(b)(xx) is an emasculated provision, because it requires completion with an ‘Annex’ listing the prohibited weapons to which it applies. And there is no Annex.
Belgium had initially proposed adoption of such an Annex at the Review Conference, but later transformed this into a series of amendments. These were the proposals that were abandoned at the November 2008 session of the Assembly of States Parties. So article 8(2)(b)(xx) remains an empty shell. Those who congratulate the Review Conference (should it adopt the Belgian proposal) for extending the prohibition on certain archaic weapons to non-international armed conflict must be reminded of the truly dramatic failure of the Rome Statute to incorporate provisions that are meaningful and relevant to modern armed conflict. As things now stand, nineteenth century technology is governed by the Rome Statute, but twenty-first century technology is ignored.
At the heart of the inadequacy of article 8(2)(b)(xx) is the debate about nuclear weapons. Any general prohibition of weapons that are ‘of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’ might eventually contemplate nuclear weapons. And this has always been a concern to some of the usual suspects. At the Rome Conference, the delegate from Jordan said he ‘would find it hard to explain to anyone why bullets which expanded or flattened were prohibited while nuclear weapons and laser guns were not’ (see UN Doc. A/CONF.183/C.1/SR.34, para. 80).
Upon ratification of the Rome Statute, both New Zealand and Sweden used declarations to raise the issue of nuclear weapons. Noting that most of the war crimes in article 8 do not refer to the type of weapons, New Zealand said it would be ‘inconsistent with the principles of international humanitarian law’ to limit the scope of the Statute ‘to events that involve conventional weapons only’. New Zealand cited the Advisory Opinion of the International Court of Justice on nuclear weapons, adding that ‘international humanitarian law applies equally to aggressor and defender states and its application in a particular context is not dependent on a determination of whether or not a state is acting in self-defence’. Similarly, Sweden also cited the advisory opinion in its declaration, stating that ‘the Court finds that there can be no doubt as to the applicability of humanitarian law to nuclear weapons’. On the opposite side of this divide, France made a declaration stating that ‘the provisions of Article 8 of the Statute, in particular paragraph 2(b) thereof, relate solely to conventional weapons and can neither regulate nor prohibit the possible use of nuclear weapons’. Upon signature, Egypt stated: ‘The provisions of the Statute with regard to the war crimes referred to in article 8 in general and article 8, paragraph 2(b) in particular shall apply irrespective of the means by which they were perpetrated or the type of weapon used, including nuclear weapons, which are indiscriminate in nature and cause unnecessary damage, in contravention of international humanitarian law.’
Mexico has proposed an amendment to the Rome Statute that prohibits nuclear weapons, but it will not be considered at the Review Conference. Mexico has explained that its proposal is based on the belief that the threat or use of nuclear weapons is forbidden under general international law.

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