Building On Art. 8 (2) (B) (XX) of The Rome Statute of The International Criminal Court: Weapons and Methods of Warfare

Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare Author(s):
Roger S. Clark Source: New Criminal Law Review: An International and Interdisciplinary Journal, Vol. 12, No. 3 (Summer 2009), pp. 366-389 Published by: University of California Press Stable URL: http://www.jstor.org/stable/10.1525/nclr.2009.12.3.366 . Accessed: 21/08/2013 06:02
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B U I LD I NG ON ARTICLE 8(2)(B)(XX) OF TH E R O M E S TAT U T E O F T H E I N T E R N AT I O N A L CR I M I NAL COU RT: WEAPON S AN D M E T H O D S O F WA R FA R E Roger 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, poisonous or other gases, and of expanding bullets. Early drafts of the Statute included the use of these forbidden weapons in non-international as well as in international armed conict. They also included as crimes the use of chemical, 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 in 2010, 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 attention 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 additions can be made applicable to all parties to the Statute, or only to those who agree specically to them, are also addressed.
*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 expressed herein should not be attributed to that government. New Criminal Law Review, Vol. 12, Number 3, pps 366389. ISSN 1933-4192, electronic ISSN 1933-4206. 2009 by the Regents of the University of California. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Presss Rights and Permissions website, http://www. ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/nclr.2009.12.3.366.
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B U I L D I N G O N A R T I C L E 8 ( 2 ) ( B ) ( X X ) O F T H E R O M E S TAT U T E
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I . I N T R O D U CT I O N
Article 8(2)(b) of the Rome Statute of the International Criminal Court (Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998)) deals with [o]ther violations of the laws and customs applicable in international armed conict, within the established framework of international law. . . . Among the particular acts that it proscribes are the following:
(xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or atten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions [.] 1
The subparagraph also refers to this (numbered (xx)):

Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superuous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conict, 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 123.2
This latter provision was adopted against the background of discussion of including in the Statutes catalogue of war crimes, in addition to those in subparagraphs (xvii), (xviii) and (xix), the use of chemical weapons, biological weapons, nuclear weapons, antipersonnel land mines, and the like. As I recall the debate in Rome (much of it unrecorded) some of these (chemical and biological weapons in particular) were regarded by most participants in 1998 as already, in the words of subparagraph (xx), subject of a comprehensive prohibition by treaty or custom (or both). But agreement could not be reached to include them in the Statute in light of
1. Rome Stat. art. 8(2)(b)(xvii), (xviii), (xix). 2. Rome Stat. art. 8(2)(b)(xx).
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the refusal to include nuclear weapons.3 A majority, perhaps a substantial majority, regarded nuclear weapons as prohibited under international customary law, in accordance with the dissent in the Nuclear Weapons Advisory proceedings,4 but an adamant group, composed mostly of the Permanent Five members of the Security Council (P5) and NATO members, believed the contrary. There is a long history in warfare of regarding some weapons as so barbaric that it is absolutely forbidden to use them.5 I believe that the list of absolutely banned weapons in Article 8(2) that survived the Rome process is too short and that lengthening the list is in order. The issue now is whether to revisit, and include in the Statute, chemical, biological, and nuclear weapons (often lumped together as weapons of mass destruction or WMD),6 and other types of disfavored weaponry. That might be done at the planned 2010 Review Conference, or at a subsequent review. A further question is whether the prohibitions should apply in non-international as well as international armed conict. I believe that they should. Belgium
3. See Philippe Kirsch & John T. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 Am J. Intl L. 2 at 11 n.32 (1999); Roger S. Clark, The Rome Statute of the International Criminal Court and Weapons of a Nature to Cause Superuous Injury or Unnecessary Suffering, or Which Are Inherently Indiscriminate, in International Humanitarian Law: Challenges 259 (John Carey, William V. Dunlap & R. John Pritchard eds., 2004). 4. The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) (Koroma, Shahabudeen, and Weeramantry, JJ., dissenting). The Advisory Opinion focuses on state responsibility, but the issue of individual criminal responsibility was not far from the surface. As the Nuremberg Tribunal put it, [c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. Judgment of the International Military Tribunal for the Trial of Major German War Criminals, 41 Am. J. Intl L. 172, 221 (1946). The Tribunal was speaking specically to individual criminal responsibility for breaches of the Kellogg-Briand Pact, a treaty that was silent on the subject. Of course, the abstract entities we call states may also be liable (if not criminally so) on the basis of principles of state responsibility. 5. Jean-Marie Henckaerts & Louise Doswald-Beck, International Committee of the Red Cross, 1 Customary International Humanitarian Law at 243 (examples of weapons causing unnecessary suffering, beginning with barbed lances and barbed spears) and 249 (examples of indiscriminate weapons). 6. See generally Roger S. Clark, Weapons of Mass Destruction, http://www.enotes. com/genocide-encyclopedia/weapons-mass-destruction; Weapons of Mass Destruction Commission, Weapons of Terror: Freeing the World of Nuclear, Biological and Chemical Arms (2006).
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announced at the Seventh Session of the Courts Assembly of States Parties in November 2008 that it was planning to make proposals addressing at least some of these items in 2009. It remains to be seen where Belgium or other States Parties will take it.7 An account of the travails of the issue in Rome will set the stage (Part II of this article). It will be followed by an examination of the currently potential kinds of forbidden weapons for addition to the annex contemplated by Article 8(2)(b)(xx), some of them not considered in Rome (Part III of this Article). Finally, there is the knotty question of whether the relevant provision of Article 121 on amendments is that which requires a seven-eighths majority of the parties to the Rome Statute to ratify or accept the amendment (resulting in all parties being bound), or whether the applicable provision is that in which only those parties who agree can be bound (Part IV, below). While that matter is not open and shut, I believe that the better argument is the seven-eighths one.
I I . N E G OT I AT I O N S I N R O M E , 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-withinoptions concerning proscribed weapons.9 In relation to breaches of the
7. An early, informal draft of the Belgian proposals is discussed in Roger S. Clark, The Weapons Provision and Its Annex: The Belgian Proposals, in International Criminal Justice (G. Roberto Bellilli ed., 2009). The proposals entail both expanding the list of prohibited weapons and extending the proscription to include non-international as well as international 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, also dealing 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 States Parties. (Document on le with author.) The author understands that Mexico will be making a formal proposal on nuclear weapons at the same time. 8. On the history, see Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement, ch. 6 (2006). As Glasius notes, id. at 105, the use of weapons of 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 International Criminal 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
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laws and customs relating to international armed conict, these included various lists, some of them including biological, chemical, and nuclear weapons, some including antipersonnel mines10 and blinding laser weapons.11 In addition, there was a provision allowing for future developments that spoke of such other weapons or weapons systems as become the subject of a comprehensive prohibition pursuant to customary or conventional international law.12 This language, taken from a Canadian proposal, apparently left it 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 International Committee of the Red Cross, it referred in general language to a proscription of three classes of weapons, those causing superuous injury, those causing unnecessary suffering, and those that are inherently indiscriminate. The Preparatory Committee draft also included options relating to violations of the laws and customs applicable in non-international armed
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 armed conict 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: Proposal Regarding 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 discusses the issue annually and calls for reports from the Secretary-General under the item Effects 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 the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction. The Convention, adopted in Ottawa the previous year, was not yet in force at the time of the Rome Conference. Many of those involved in the New York preparations had been in Ottawa for the signing. 11. Based on the prohibition contained in Protocol IV of 1995 to the 1980 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. The protocol may be found in Doc. CCW/CONF.I/16 Part I. The protocol had twenty-eight parties at the time 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.
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conict. The options were to include nothing on the subject in relation to such conicts or to include something based on whatever was decided in relation to international armed conict.15 A number of Pacic Island, African, and Islamic representatives spoke favorably of the generic formula in Rome. During the general debate in the rst week of the Conference, many references were made to the need to deal adequately with weapons, including in particular nuclear weapons. The term weapons of mass destruction was even heard.16 An NGO group calling itself the Peace Caucus circulated several useful memos on disfavored weapons and there were numerous other informal papers around. There were still adamant positions at both ends of the weapons spectrum, especially on the nuclear issue. Opponents of nuclear weapons found themselves in the unexpected position of being offered the leadership of India, which wasalong with Pakistanone of two states that had recently carried out nuclear tests. To the extent that I understood its articulated position, it is that India (i) needs the bomb as deterrence against its dangerous neighbors, (ii) to make the point that, as the worlds largest 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 powers clung 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 list of 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 applies 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 International Humanitarian Law: A Critique of Internationalized Armed Conict, 85 Intl Rev. Red. Cross 313 (2003). In its decision on the interlocutory appeal in the Tadi c case, the International 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. Prosecutor v. Tadi c, 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 for other forbidden weapons. 16. See Press Release, U.N. Ofce of Public Information, Use of Weapons of Mass Destruction Should Be Included in Criminal Courts Denition of War Crimes, Say Several Conference Speakers, U.N. Doc. L/ROM/14 (June 18, 1998) (quoting statements by Samoa, Bangladesh, Nigeria, and Womens International League for Peace and Freedom).
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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-Ambassador Philippe Kirsch of Canada and also comprising representatives of Argentina, Romania, Lesotho, and Japan, the Bureau was ultimately responsible for trying to nd an acceptable package for the treaty that would resolve all issues in a deal most people could live with, if not applaud. The options were down to three. In addition to the generic one criminalizing materials of a nature to cause superuous injury or unnecessary suffering or which are inherently indiscriminate (to which some phantom had added the seemingly innocuous words in violation of international humanitarian law, later transformed 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 liquids, materials, or devices; bullets that expand or atten easily in the human body; bacteriological (biological) agents; chemical weapons as dened and prohibited in the 1993 Convention on the subject.18 This option (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 comprehensive prohibition, subject to determination to that effect by the Assembly of States Parties, in accordance with the procedure laid down in article [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 and bullets that expand or atten in the human body, t the category of inherently indiscriminate as well as being of a nature to cause superuous injury or unnecessary suffering. I can nd no public explanation for the omission of inherently indiscriminate in this collection.
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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 the review 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 included all those weapons in the short version, plus nuclear weapons, antipersonnel 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 all nuclear weapons and, indeed, most of the weapons under discussion. There was one further aspect of the Discussion Paper of July 6 that caused much mystication in the halls. The section of the denitions on non-international armed conict no longer contained the paragraph referring to weapons that had previously tracked the weapons paragraph that related to international conict.22 Was this simply an oversight? Could it really be that, on the basis of some a contrario argument, it was now open to a ruler to gas or otherwise poison his revolting subjects? That question was never answered, nor was why the non-international provision had been removed. The Bureau returned to the fray on July 10 in what was now a Bureau Proposal 23 (as opposed to the earlier Discussion Paper). The weapons clause was down to one proposal. Its chapeau was taken from the generic option and the long version of July 6. It contained a reference to weapons that 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 that point (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).
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that of the short list of the Discussion Paper,24 beginning Employing the following weapons. . . . The anti-weapons people were told that they had won a great victory with the inclusion of the words inherently indiscriminate, 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 sheepish about 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 most of the chapeau, for fear that it might cause later mischief. Others wanted to nd a way to reinsert the generic option. One initiative by some of the Pacic states at this stage was never circulated formally. I thought it had potential, although it did not generate a groundswell. It read:
Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superuous injury or unnecessary suffering or which are [of a nature to strike military objectives and civilians without distinction] [knowing that such employment is] in violation of international humanitarian law.26
The rst of the bracketed provisions was aimed at a problem that had appeared more starkly in Rome than in New York. Most of the nuclear powers were gun shy of the term inherently indiscriminate. It seemed to be language that the ICRC used routinely at the time.27 I had thought that it was consistent with what all the judges agreed upon in the Nuclear Weapons case. It seems a fair shorthand for weapons aspects of the types of indiscriminate attacks that are proscribed by Article 51 of 1977 Protocol I 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 nature indiscriminate is prohibited). 28. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conict (Protocol I), art. 51(4) (1977).
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correct that it is not exact treaty language. Thus, the language in the rst bracket of the Pacic proposal, which seeks to catch the essence of inherently 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 or not? It was all too vague and thus contrary to the principle of legality. I pass over the facts that much vaguer language in the Statute seemed to pass muster, and that life is full of hard judgment calls (especially for leaders)29 and note the solution: add a mens rea requirement of knowledge and send the matter, at least in some aspects, to the General Part of the Statute.30 The United States itself had highlighted such a possibility by insisting 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 involve complex questions of fact and law. A provision in the Statute on mistake 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 person acting pursuant to superior orders may be excused where that person did not know that an order was unlawful and it was not manifestly unlawful.33 I suspect that it will always be manifestly unlawful to use poison or expanding bullets; sometimes other cases may be ambiguous. At all events, 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 were other 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 Criminal Law: 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.
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Statute contained a concept of recklessness that might have occupied some useful middle ground between knowledge and strict liability. It had, however, not been used to dene the mental elements of any of the offenses in the special part and was deleted in Rome even before the Bureaus drafts appeared.34 In a conference in which 160 states are participating, it is often unclear who is plotting what. We had, at this point, been hearing whispers emanating from an unknown source that, if nuclear weapons were not to be included, then the poor persons weapons of mass destruction, chemical and biological weapons, should not be either. This was, indeed, the case when the Bureau nally struck on the last day of the Conference with its global package, ultimately adopted, for the whole treaty.35 Poison, asphyxiating gases, and expanding bullets were proscribed (with no introductory chapeau).36 Gone were the references to bacteriological and chemical weapons. A new concluding clause, based on the old generic provision and the old addition clause, read:
Employing the (sic) weapons, projectiles and material and methods of warfare which are of a nature to cause superuous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conict, provided that such weapons 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].37
Now, in the dying hours of the Diplomatic Conference, the issue became pretty stark for most delegations. Were weapons a central issue, or should one take a deep breath and support what came to be known as the integrity of the Bureaus package as the only hope for a successful outcome
34. See Roger S. Clark, Drafting a General Part to a Penal Code: Some Thoughts Inspired by the Negotiations on the Rome Statute of the International Criminal Court and by the Courts First Substantive Law Discussion in the Lubanga Dyilo Conrmation Proceedings, 19 Crim. L. F. 519, 525 n.16 (2008). 35. The document was numbered A/CONF.183/C.1/L.76 and Adds. It was dated July 16 but, like most participants, I did not see it until the 17th. 36. Id. 37. The strange the at the beginning vanished and a renumbering of articles occurred in the last version produced on July 18 as U.N. Doc. A/CONF.183/9.
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to the Conference? Once the amendments started coming thick and fast, the whole deal would unravel. . . . In a World of Hard Choices what was a Poor Delegate to do? Two weapons proposals were in fact circulated at this late stage before the Committee of the Whole. India proposed to add a reference to employing weapons of mass destruction, i.e. nuclear, chemical and biological weapons.38 It had apparently tried to obtain the support of the NonAligned Movement (NAM) for this. But the African Group (most of them NAM members) had an alternative proposal to return to the original generic language.39 Some delegates thought that it was more important to most NAM members to get a reference to aggression in the Statute than to succeed on the weapons issue. Aggression was ultimately included by the Bureau as a crime within the jurisdiction of the Court, but was subjected 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 other proposals it made) was the subject of a no-action motion. The procedural motion 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 jurisdictional provisions of the Statute was also the subject of an overwhelmingly supported no-action motion.42 The Statute, including the short weapons clause, 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 International Criminal 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.
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I I I . W H AT M I G H T B E A D D E D BY A R E V I E W CON FE R E NCE
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 Article 8(2)(b)(xx). It must be the case that something that has become prohibited by customary law ts the category. It is sometimes endishly difcult to know when this is. Sometimes the answer is found by applying the provisions 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 ratication.44 But what is sufcient and who decides?45 With this caveat in mind, I turn to the possibilities. One could mention rst the trio omitted in 1998, namely chemical, biological, and nuclear weapons. Chemical weapons may in fact already be included in Article 8(2)(b)(xviii), which proscribes [e]mploying asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices.46 This language, taken from the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods 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 the International Criminal Court: Observers Notes, Article by Article at 423, 424 (Otto Triffterer ed., 2nd ed. 2008) [hereinafter Triffterer]:
A comprehensive prohibition may exist under customary international law as evidenced by the opinio juris and practice of States, or under conventional international law, in particular when a treaty prohibiting the employment of a specic weapon has widely been ratied. In both cases, almost universally accepted treaties will generally be clear evidence of a comprehensive prohibition. It is not necessary that the treaty prohibiting this weapon be universally ratied or that all States without exception have ratied such treaty. The qualied majority of States Parties at a Review Conference or Assembly of States Parties will determine which weapons can 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
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chemical agents that are proscribed by the later and perhaps more carefully drafted 1993 Chemical Weapons Convention.49 The 1993 Convention had 188 parties by May 2009, including India, Japan, and all ve of the permanent members of the Security Council. Chemical weapons are surely a prime candidate for being regarded as the subject of a comprehensive prohibition, and it would appear sensible to put back what was deleted in Rome. The symbolism is important and any doubts about the present coverage can be removed. Whatever is to be made of the current status of chemical weapons in the Statute,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 aim is to incinerate people or blow them to smithereens. That is not forbidden. Perhaps by similar sophistry chemical weapons liquidate or dissolve people rather than poisoning or asphyxiating them! 49. Convention on the Prohibition of the Development, Production, Stockpiling and Use 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 on the 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 the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. See Preparatory Committee Draft Statute, supra note 9, at art. 5, War Crimes, (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 prohibition of asphyxiating gases to the use of bacteriological methods of warfare without further explanation. Bacteriological (biological) is the language of the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 1015 U.N.T.S. 163 (1972). The 1972 Convention, article I, contains an undertaking by each party never in any circumstances to develop, produce, stockpile or otherwise acquire or retain
(1) Microbial or other biological agents, or toxins, whatever their origin or method of production, of types and in quantities that have no justication for prophylactic, protective or other peaceful purposes; (2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile 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 specifically condemned in the later Convention). Given the threshold requirement of an
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is clear that bacteriological weapons are not included in the Rome Statutes list of banned items. The 1972 Convention on such weapons is widely ratied,52 as is the 1925 Geneva Protocol.53 Bacteriological weapons are a strong candidate for being the subject of a comprehensive prohibition. Chemical and bacteriological weapons assuredly should have been contained in the Statute ten years ago; is it too much to expect that a correction should be made at the Review Conference? Or is it the case that they can be done only as a package with nuclear weapons? The customary and treaty law situation has perhaps not changed radically in respect of nuclear weapons, but they should be included in the Statute. The nuclear powers have remained intransigent about fullling their obligations under Article VI of the 1968 Treaty on the NonProliferation of Nuclear Weapons to negotiate nuclear disarmament,54 an obligation that is now four decades old. Another decade has gone by since Rome. While President Sarkozy is reported to have made the stunning announcement that France was leading the European Union in an effort to reduce the number of nuclear weapons in the world, propos[e] a global ban on nuclear testing and a moratorium on the production of all ssile material,55 it is too soon to tell whether this might lead to new attitudes on the criminality of the actual use of nuclear weapons.
armed conict under Article 8, it may be that the crime, for present purposes, should be conned to use in armed conict. (The 1972 Convention seems to use armed conict in a way that includes both international and non-international armed conict. The 1925 prohibition should now be similarly interpreted, see supra note 15.) 52. The International Committee of the Red Cross lists 163 parties, including all ve permanent members of the Security Council, India, and Japan: http://www.icrc.org/ihl.nsf/ WebSign?ReadForm&id=450&ps=P. 53. Which has 135 parties: http://cns.miis.edu/inventory/pdfs/genev.pdf. If the submissions made to the International Court in the Nuclear Weapons proceedings, supra note 4, are any indication, many newer states regard the 1925 Convention as indicative of custom. 54. Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 729 U.N.T.S. 161. Article VI provides:
Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.
In the Nuclear Weapons Advisory proceedings, supra note 4, the International Court of Justice held unanimously that this is an obligation both to negotiate in good faith and to bring the negotiations to a successful conclusion. 55. Sarkozy Leads EU Push to Cut Nuclear Weapons, Intl Herald Trib., Nov. 8, 2008.
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The ban on antipersonnel mines, the subject of some discussion at Rome,56 was fairly recent in 1998, but the relevant treaty57 is now widely ratied (closing in on 160 parties) and perhaps provides a basis for the proposition that the prohibition is now comprehensive. The down side of the argument is that while the parties include such powers as France, Japan, and the United Kingdom, they do not include China, India, the Russian Federation, and the United States. A package of other possibilities, most of which had some discussion in Rome, comes from the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects58 and its ve protocols. The Convention itself is a framework convention; the meat is in the protocols. Parties to the Convention must agree to be bound by at least two of the rst three protocols that were adopted along with the main Convention in 1980: Protocol I on Non-Detectable Fragments, Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (amended in 1996), and Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons. Added subsequently were Protocol IV on Blinding Laser Weapons, adopted in 1995,59 and Protocol V on Explosive Remnants of War, adopted in 2003.60 The original framework 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 the Genocide Convention (140) and the Torture Convention (146), and only a few behind the 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 other CCW 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 in International Law 20022006, at 363 (2006). 61. Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have
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which there are now sixty-eight parties, extended its prohibitions to noninternational armed conict. At the time of writing (May 2009), the United Nations SecretaryGeneral, as depositary, reports that there are 108 parties to the Convention itself,62 107 to Protocol I, 92 to Protocol II, as amended, 102 to Protocol III, 93 to Protocol IV, and 58 to the most recent protocol. While the actual numbers of parties may not be overwhelming, it should be noted that the preamble to the Convention emphasizes the desirability that all States become parties to this Convention and its annexed protocols, especially the militarily signicant States. It thus places some signicance on the actions of the militarily signicant States. Most of the large powers, including the ve permanent members of the Security Council, are indeed parties to the framework Convention and the rst four protocols and to the amendment to the framework Convention extending protection to non-international armed conict.63 Protocol V does not, however, include among 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-international armed conict. Protocol V perhaps awaits developments.65 A point needs to be made about the criminal status of the weapons in 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 applied to the rst four protocols and left it open to the drafters of subsequent protocols to make individual decisions about application. Protocol V also extends to non-international armed 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 Protocol III. Protocol II is superseded by its later amendments and ninety-two states are parties to that protocol as amended. 63. The United States was very active up to and in Rome in extending protections to non-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.
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enacting penal legislation66 in respect of actions by its nationals, on its territory or in any other place under its jurisdiction.67 As in the case of all of the other instruments under consideration, there is no provision on universal jurisdiction, the Convention relying instead on nationality and territorial jurisdiction. The Bacteriological Weapons Convention has a suppression obligation that does not specically use the term penal but seems to be of like effect.68 Discussions of the legality of nuclear weapons emphasize state responsibility, but criminal responsibility must follow.69 Similarly, the 1980 Convention and its protocols are drafted mostly on the basis that they represent obligations on statesreferences to criminal responsibility are thin. Only Protocol II, on Mines, Booby-traps and other
66. Chemical Weapons Convention, supra note 49, at art. VII(1). The obligation to criminalize must include all the activities in which the state parties undertake never under 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 to a State Party under this Convention.
Chemical Weapons Convention art. I(1). For purposes of the Rome Statute, it will be necessary to establish a nexus to an actual armed conict. Most of the activities in (d) will be captured by article 25(3) of the Rome Statute. 67. Chemical Weapons Convention, supra note 49, at art. VII(1). Professor Swart comments:
Pursuant to paragraph 1 [of Article VII], the obligation to enact penal legislation refers to the activities summed up in Article I, paragraph 1, of the Convention. Some of these activities are international crimes independent of the Chemical Weapons Convention. This is, in particular, 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 as international crimes derives from treaties [Article 23 (a) of the Hague Regulations and the 1925 Geneva Protocol] as well as from customary international law. Other activities, in particular the 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 in Criminal Matters, in Treaty Enforcement and International Cooperation in Criminal Matters: 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.
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Devices, as amended, provides in its Article 1470 for penal sanctions for breach. The Anti-personnel Mines Convention71 provides for measures including penal measures on a territoriality and nationality basis. All of these prohibitions are, in short, open to the argument that they are appropriate for penal suppression in an international tribunal like the ICC, notwithstanding that they do not themselves provide for universal jurisdiction.72 Some different considerations apply to the recently concluded Convention on Cluster Munitions.73 Cluster munitions are conventional munitions that are designed to disperse or release explosive submunitions each weighing less than twenty kilograms.74 In language adapted from the Chemical Weapons Convention, this Convention provides that the parties undertake never under any circumstances to use cluster munitions; develop, produce, otherwise acquire, stockpile, retain, or transfer to anyone, directly or indirectly, cluster munitions; assist, encourage, or induce anyone to engage in any activity prohibited to a State Party under the Convention.75 Each Party is also required to take all appropriate legal, administrative, and other measures to implement the Convention including 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 headed Compliance. 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 giving rise to individual criminal responsibility by a majority of the Appeals Chamber of the ICTY, even though that offense, while contemplated by Geneva Conventions and Protocols, 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. Four states, the Holy See, Ireland, Norway, and Sierra Leone also ratied it on that date and three more by May 2009. Thirty ratications or accessions are required to bring it into force. 74. Cluster Munitions Convention, id. at art. 2. (There is greater detail in the denition, not necessary for present purposes.) 75. Id. at art. 1. 76. Id. at art. 9.
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If the earlier analysis that a comprehensive prohibition requires more than the adoption of a Convention is correct,77 then it is too soon to add the cluster munitions prohibitions to the Rome Statute through Article 8(2)(b)(xx). The situation is similar to that of Protocol V to the Conventional 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 that agree to the amendment in the future.
A. Effecting the Amendments
As with the provision on aggression,78 the potential addition to the Statute of items for an Annex on weapons and methods of warfare, contemplated in Article 8 of the Statute, raises some awkward questions concerning the appropriate procedures to be followed in effecting the relevant amendments. It will be recalled that the concluding words of Article 8(2)(b)(xx) read: 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. There are two issues here: how does one determine that there is a comprehensive prohibition and what exactly are the relevant provisions in articles 121 and 123? As to the rst issue, Article 8(b)(xx) does not say how it is to be established that there is a comprehensive prohibition. Universality is seldom the lot of multilateral treaties,79 and something short of that must be enough.80 But, in the absence of universality, who makes the call? It must be 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 that are not yet comprehensive. 78. I have explored many of the issues concerning aggression (including the relevant preparatory work of Article 121) in Roger S. Clark, Ambiguities in Articles 5(2), 121 and 123 of 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 the 1949 Geneva Conventions had acceptance by all states. Such a situation is very rare. 80. See Cottier, supra note 44.
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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-majority of (all) States Parties if consensus cannot be reached.81 Perhaps this is only tentative in the sense that, if some majority of formal acceptances is required,82 then it will be established denitively only when the requisite majority has deposited the appropriate instruments of approval. As to the relevant provisions, the focus must be on Article 121, which relates to Amendments, and on Article 123, headed Review of the Statute. The latter contemplates Review Conferences that are to consider any amendments to this Statute. In essence, these two articles have the 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 States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after the instruments of ratication or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them. 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratication or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Partys nationals or on its territory.
A fundamental issue is whether any additions to the Annex are governed by paragraph 4 or by paragraph 5. The differences are stark: an amendment to which paragraph 4 applies becomes effective for all parties once 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 the Review Conference acted under Article 121(3)? Is at least one ratication needed? It is hard
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Some general interpretative considerations leap off the page. What is the effect of the phrase in accordance with as used in Article 8(2)(b)(xx)?84 Does it mean that all of Article 121 applies in the same manner as it would if a new prohibition were being added as an amendment 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 some respects. It needs to be adopted by the Assembly or a Review Conference pursuant to Article 121, paragraph 3.85 So far, so good. Is it, however, an amendment to which paragraph 4 applies or one to which paragraph 5 applies? 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 amendment 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 wording 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 comparable issue in respect of aggression, see discussion in Report of the Special Working Group on 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. (The same is true in at least the French and Spanish texts of the Statute.) One might have expected something like approved or agreed upon. In the case of Article 5(2) on aggression, the language is once a provision is adopted 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 identical word adopted both in Article 5(2) and in Article 121(3) of the Statute opens up the possibility that nothing more than adoption by the Review Conference is required for completing the denition of aggression. Most participants in the process resist that interpretation and insist that more is needed; whether it is paragraph 4 or paragraph 5 that is the more is hotly debated. The argument for applying either paragraph 4 or paragraph 5 has to accept that adopted is used in different senses in Articles 5(2) and 121(3), the latter being narrower. The argument for only approval by the Review Conference is harder to make 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 amendment to Article 5 and thus apply only to the territory or nationals of those who accept it.
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provision that is a condition to be met, rather than an obstacle that needs to be changed. Does it need to be applied rather than amended? Is the inclusion in an annex something in the nature of a completion of, rather than an amendment to, Article 8? Is it lling an anticipated gap rather than changing something in the Statute? Compare, for example, adding a new subcategory of crime in armed conict to the Statute, such as spreading terror among a civilian population,88 which would surely be an amendment to Article 8. One other basic consideration is that the procedure for creating the Annex is special. Did the series of amendments through which the proposal was transformed mean that the drafters treated it just the same as any other change to the effect of Article 8, that is to say, governed by paragraph 5 of Article 121? I have suggested this in the past,89 but have come to the conclusion that I was perhaps too cynical when I suggested it. Was the Bureau of the Committee of the Whole really so crass as to include meaningless language? The annex procedure must have some practical implications. It now seems to me to be more plausible that the Annex is, indeed, different, and that paragraph 4 with its seven-eighths rule probably applies. Indeed, if this is not the case, the determination issue becomes irrelevant: if an amendment is to apply only to those who accept it in the future, why should it matter whether the prohibition has already become comprehensive? Put it in and let events take their coursewidespread ratication or not. In short, there appears to be a provision for inclusion of such weapons in the Statute, and a procedure for making them applicable to all.90
88. See Prosecutor v. Galic, supra note 72. Adding such an offense to the list in Article 8 seems fairly clearly to be governed by paragraph 5 of Article 121. As an amendment to article[] 8 (by adding a new war crime within the jurisdiction of the Court), it must apply only to the territory or nationals of those parties which have accepted the amendment. 89. Clark, supra note 3 at 277:
Its effect seems to be that any amendment to Article 8 to add any other weaponslandmines, or nuclear weapons, sayto the list by inclusion in the phantom annex will be subject to the limitation that the amendment applies only to those states that accept it. Article 8(2)(b)(xx) is in fact a complete creature of smoke and mirrors. It has no effect on the legal situation regarding amendments.
90. Even if one accepts the present absence of a comprehensive prohibition for, say, the matters proscribed in the Conventional Weapons Convention, Protocol V, or the Cluster Munitions Convention, so that 121(4) is inapplicable on this basis, I can see no reason why
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These are knotty questions that need to be resolved. Whether paragraph 4 or paragraph 5 of Article 121 applies is the fundamental question about the relevant provisions of the Article. Fathoming the answer to this 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 individual decisions to go ahead. Frankly, the policy questionwhether it is better to hold out for all, or to take what acceptances can be achievedis itself a conundrum!
it might not be possible to treat such matters as paragraph 5 opt-in possibilities for all states 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 Munitions treaty.

Building On Art. 8 (2) (B) (XX) of The Rome Statute of The International Criminal Court: Weapons and Methods of Warfare

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Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare Author(s):

B U I LD I NG ON ARTICLE 8(2)(B)(XX) OF TH E R O M E S TAT U T E O F T H E I N T E R N AT I O N A L CR I M I NAL COU RT: WEAPON S AN D M E T H O D S O F WA R FA R E Roger S. Clark*

The subparagraph also refers to this (numbered (xx)):

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