War crimes amendment negotiations

Today (Friday) we have a session of the Working Group devoted to the war crimes amendment. To recall, it proposes to add three paragraphs concerning prohibited weapons to the non-international armed conflict part of article 8 (para. 8(2)(e)). The prohibition of these weapons is already covered with respect to international armed conflict (Rome Statute, art. 8(2)(b)(xvii), (xviii) and (xix)).
The draft is now accompanied by a resolution (‘Draft resolution amending article 8 of the Rome Statute’, RC/WGOA/1/Rev.1) with several paragraphs, some of which are not without interest.

The second paragraph of the preamble of the resolution is in square brackets, indicating that it has yet to be accepted by consensus. It states:

[Noting article 121, paragraph 5, of the Statute which states that any amendments to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute.]

This is followed by a footnote: ‘The text is subject to further consideration, namely with regard to the outcome of the discussion on the other amendments.’

The issue here is the strange consequence of article 121(5) by which a State Party appears to be able to shelter its own nationals from an amendment by its failure to ratify the amendment, even when the crime takes place on the territory of a State that has accepted the amendment. According to the ‘understanding’ in the paragraph, the nationals of a non-party State can never be prosecuted for a crime comprised in an amendment to articles 5, 6, 7 and 8. Surely this is not a reasonable outcome? It makes no sense that nationals of non-party States are liable for prosecution for crimes currently included in the Rome Statute but not with respect to amendments. But this seems to be what article 121(5) says, and the ‘understanding’ confirms it.

The preamble of the draft resolution also contains some language respecting the issue of dum-dum bullets (i.e., those that ‘expand or flatten easily in the human body’). The seventh preambular paragraph of the draft refers to the Elements of Crimes, and their provisions governing prohibited weapons, saying they ‘can also help in their interpretation and application in armed conflict not of an international character’, adding that they confirm ‘the exclusion from the Court’s jurisdiction of law enforcement situations’. This reflects a concern to exclude from the scope of the Rome Statute the use of dum-dum bullets by law enforcement authorities, which takes place, apparently even in Geneva! Of course, the Statute already establishes that the provisions governing war crimes in non-international armed conflict do not apply does not apply to ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’.

Preambular paragraph eight of the draft refers to the prohibition of poison or poisoned weapons, and asphyxiating, poisonous or other gases, noting that these are ‘serious violations of the laws and customs applicable in armed conflict not of an international character, as reflected in customary international law’. Similar language is employed in the ninth preambular paragraph concerning dum-dum bullets. It is an intriguing reference to the concept of customary international law. There are no references to customary international law in the Rome Statute itself or the elements of Crimes.

Finally, the ninth preambular paragraph notes that the crime of using dum-dum bullets is only committed ‘if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets…’ The words ‘uselessly aggravate suffering or the wounding effect’ are already included in the Elements of Crimes for the comparable offence under the international armed conflict provisions. The relevant text of the Elements of Crimes for bullets reads: ‘The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect.’

Two things are new, however. First, the mental element seems to be significantly narrowed by requiring that the perpetrator ‘employ the bullets to…’ rather than simply be ‘aware that the nature of the bullets was such that…’. Perhaps this is saying the same thing. But in legal texts, if you want to say the same thing, it is better to simply repeat the same words. The other change or addition is the reference to ‘upon the target of such bullets’ following the words ‘uselessly aggravate suffering or the wounding effect’. I don’t understand this one. If you intend to ‘uselessly aggravate suffering or the wounding effect’, it is presumably with respect to ‘the target’. It does not seem theoretically possible to intend to cause harm to something that is not ‘the target’. That’s the whole point of the idea of ‘the target’. These words ‘upon the target of such bullets’ add nothing and may – who knows? – create confusion. I’d be inclined to leave them out.

It may not matter very much, of course. As I have already said, there have never been any prosecutions for use of prohibited weapons, and there may never be any, at least as far as dum-dum bullets are concerned. Some will say, too, that this is only a resolution. But years from now, a judge may look at these materials and scratch her or his head about what they mean. Perhaps we’ll get some clarity in the days that follow. But I can’t provide any, at least right now.