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Chemical Weapons and the International Criminal Court

Published online by Cambridge University Press:  20 January 2017

Andreas Zimmermann  and
Meltem Şener
Andreas Zimmermann
Affiliation:
University of Potsdam
Meltem Şener
Affiliation:
University of Potsdam
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Extract

When the contracting parties to the Rome Statute establishing the International Criminal Court met in Kampala in 2010 to discuss possible amendments to the statute, the main focus was, and has thereafter remained, on the crime of aggression. In addition to amending the statute to include the crime of aggression, however, the contracting parties amended Article 8 of the statute to include a broader range of war crimes in noninternational armed conflicts over which the ICC can have jurisdiction—inter alia, by including the use of chemical weapons. Although the latter amendment received much less attention from both the Kampala drafters and outside observers than the former, it is the use of chemical weapons that has come most quickly into play in world events. In particular, the use of chemical weapons by Syrian government forces in 2013 (and perhaps subsequently) has acutely raised questions concerning the extent of the ICC’s treaty-based jurisdiction, both under the unamended text of the Rome Statute or in situations where the amendment to Article 8 applies. These events have also provoked consideration concerning the Security Council’s legal powers to extend the ICC’s jurisdiction to certain crimes involving chemical weapons that would otherwise be beyond its subject matter jurisdiction. These questions are considered in this Note.

Type
Current Developments
Information
American Journal of International Law , Volume 108 , Issue 3 , July 2014 , pp. 436 - 448
Copyright
Copyright © American Society of International Law 2014

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References

1 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute]. Materials for the International Criminal Court are available on the court’s website, http://www.icc-cpi.int.

2 International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, Res. RC/Res.6 (June 11, 2010).

3 International Criminal Court, Assembly of States Parties, Review Conference, Amendments to Article 8 of the Rome Statute, Res. RC/Res.5 (June 10, 2010). Documentation on the Kampala conference is available at http://www.icc-cpi.int/en_menus/asp/sessions/official%20records/Pages/review%20conference.aspx.

4 The Spartans reportedly used agents that could cause a high air concentration of sulphur dioxide (resulting in asphyxiation) during the Peloponnesian War (431–404 BC). see Adrienne Mayor, Greek Fire, Poison, Arrows, and Scorpion Bombs:Biological and Chemical Warfare in the Ancient World 210–11 (2003).

5 U.S. War Department, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, Art. 70 (Apr. 24, 1863), reprinted in The Laws of Armed Conflicts 3 (Dietrich Schindler & Jiri Toman eds., 3d Rev. ed. 1988), available at http://www.civilwarhome.com/liebercode.htm.

6 Declaration 2 Concerning Asphyxiating Gases (July 29, 1899), reprinted in Documents on the Laws of War 36 (Adam Roberts & Richard Guelff eds., 2d ed. 1989), available at http://www.icrc.org/applic/ihl/ihl.nsf/. The 1899 Hague Peace Conference thus both confirmed and revised Article 13(a) of the 1874 Brussels Declaration, which specifically prohibited the “[e]mployment of poison or poisoned weapons.” Project of an International Declaration Concerning the Laws and Customs of War, Aug. 27, 1874,65 Brit.& Foreign St. Papers 1005 (1873–74), available at http://www.icrc.org/ihl/INTRO/135.

7 Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631, available at http://www.icrc.org/applic/ihl/ihl.nsf/.

8 Treaty of Peace with Germany, June 28, 1919,2 Bevans 43,available at http://net.lib.byu.edu/rdh7/wwi/versa/versa 4.html.

9 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 94 UNTS 65, at http://www.un.org/disarmament/WMD/Bio/1925GenevaProtocol.shtml.

10 Cottier, Michael, Article 8, para. 2(b)(xvii)–(xx), in Commentary on the Rome Statute of the International Criminal Court 410, 415–19 (margin no. 180) (Triffterer, Otto ed., 2d ed. 2008)Google Scholar.

11 Stewart, James G.,Towards a Single Definition of Armed Conflict in International Humanitarian Law:A Critique of Internationalized Armed Conflict, 91 Int’l. Rev. Red Cross 313, 317 (2003)CrossRefGoogle Scholar.

12 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Art. I(1)(b), opened for signature Jan. 13, 1993, 1974 UNTS 317; see Walter Krutzsch & Ralf Trapp, A Commentary on the Chemical Weapons Convention 12–13 (1994).

13 Constitutional Case No. C-225/95, Judgment, para. 23 (Colom. Const. Ct. May 18, 1995), at http://www.corteconstitucional.gov.co/relatoria/1995/c-225-95.htm#_ftnref29.

14 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeal on Jurisdiction, para. 124 (Oct.2, 1995). Materials and cases for the ICTY are available at http://www.icty.org.

15 Id., paras. 119, 128–36.

16 Henckaerts, Jean-Marie & Doswald-Beck, Louise, 1 Customary International Human Itarian Law: Rules 261–63 (2006)Google Scholar.

17 Id. at 26 (with manifold references to state practice).

18 SC Res. 2118, paras. 2, 15 (Sept. 27, 2013); id., pmbl., paras. 7–8.

19 These prohibitions appear in Article 8(2)(b)(xvii) and (xviii) of the Rome Statute, supra note 1.

20 Report of the Preparatory Committee on the Establishment of an International Criminal Court, at 17, 18, UN Doc. A/CONF.183/2 (Apr. 14, 1998) (proposed options under draft Article 5 (“War Crimes”)).

21 Report of the Inter-sessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, UN Doc. A/AC.249/1998/L.13 (Feb. 4, 1998).

22 See generally Dapo Akande, Can the ICC Prosecute for Use of Chemical Weapons in Syria?, EJIL Talk! (Aug. 23, 2013), at http://www.ejiltalk.org/can-the-icc-prosecute-for-use-of-chemical-weapons-in-syria/; William A. Schabas, Chemical Weapons: Is It a Crime? (Apr. 29, 2013), at http://humanrightsdoctorate.blogspot.de/2013/04/chemical-weapons-is-it-crime.html.

23 see Alamuddin, Amal & Webb, Philippa, Expanding Jurisdiction over War Crimes Under Article 8 of the ICC Statute, 8 J Int’l Crim. Just. 1219, 1227–28 (2010)CrossRefGoogle Scholar.

24 It is often argued that the latter provision comes into play only after the regular methods of interpretation have failed to resolve ambiguity. Bruce Broomhall, Article 22, in Commentary on the Rome Statute of the International Criminal Court, supra note 10, at 713, 726 (margin no. 48).

25 Cottier, supra note 10.

26 Article 9(1)of the Rome Statute, supra note 1, provides: “Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.”

27 The Elements of Crimes, ICC Doc. ICC-PIDS-LT-03-002/11_Eng(2011).

28 Cottier, supra note 10, at 413–14 (margin no. 178).

29 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, supra note 12, Art. I(5).

30 As noted above, the phrase “asphyxiating or” is included only in relation to “gas or other analogous substance or device” in Article 8(2)(b)(xviii).

31 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, supra note 12, Art. II(2).

32 Andreas Zimmermann,Article 8, para. 2(c)–(f), in Commentary on the Rome Statute of the International Criminal Court, supra note 10, at 475, 476 (margin no. 235).

33 Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Definition of Crimes, Proposal Submitted by the United States, War Crimes, UN Doc. A/AC.249/1997/WG.1/DP.1 (1997).

34 UN Doc. A/AC.249/1997/WG.1/DP.2 (1997)(working paper submitted by NewZealand and Switzerland).

35 Zimmermann, supra note 32, at 476 (margin no. 236).

36 Rome Statute, supra note 1, Art. 8(2)(b); see William Schabas, The International Criminal Court: A Commentary on the Rome Statute 197 (2010).

37 Michael Cottier, supra note 10, at 410–12 (margin nos. 176–77); Geiß, Robin, Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala, 2010 Y.B. Int’l Humanitarian L. 337 Google Scholar.

38 Prosecutor v. Tadić, supra note 14, para. 119.

39 William Schabas, supra note 36, at 198.

0 Res. RC/Res.5, supra note 3, Annex I.

1 International Criminal Court, Assembly of States Parties, 8th Sess., Report of the Bureau on the Review Con ference, ICC-ASP/8/43/Add.1, Annex I (Nov. 10, 2009).

42 International Criminal Court, Assembly of States Parties to the Rome Statute of the International Criminal Court, 8th Sess., Official Records, ICC-ASP/8/20, Annex II (“Report of the Working Group on the Review Conference”), App. I (“Belgium”), Amend. 2, at 59–60 (Nov. 2009).

43 Id., Amend. 1. This amendment was cosponsored by eighteen states: Austria, Argentina, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia, and Switzerland.

44 Id., Amend. 2. This latter proposal was cosponsored by only fourteen states: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa, and Slovenia. see ICC-ASP/8/43/Add.1, supra note 41, at 3–4.

45 Zimmermann, supra note 32, at 502 (margin no. 352).

46 The respective part of the Elements of Crimes (namely, element 2) relating to both Article 8(2)(e)(xiii) (“War crime of employing poison or poisoned weapons”) and (xiv) (“War crime of employing prohibited gases, liquids, materials or devices”), as adopted in Kampala, requires in identical terms that “[t]he substance was such that it causes death or serious damage to health in the ordinary course of events, through its [additional for Article 8(2)(e)(xiv): asphyxiating or] toxic properties.” Res. RC/Res.5, supra note 3, Annex II. The one difference is that the elements relating to Article 8(2)(e)(xiv) contain, in a footnote, a disclaimer providing that “[n]othing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of International Law with respect to the development, production, stockpiling and use of chemical weapons.” Id., n.1.

47 For further details, see Zimmermann, Andreas, Amending the Amendment Provisions of the Rome Statute—the Kampala Compromise on the Crime of Aggression and the Law of Treaties, 10 J. Int’l. Crim. L.& Just. 209 (2012)CrossRefGoogle Scholar.

48 Resolution RC/Res.5, supra note 3.

49 Id. By early 2015, these states will includ([a-z]) andorra, Austria, Belgium, Botswana, Croatia, Cyprus, Estonia, Germany, Liechtenstein, Luxembourg, Mauritius, Norway, Samoa, San Marino, Slovakia, Slovenia, Trinidad and Tobago, and Uruguay. Resolution RC/Res.5 also determined that “States that subsequently become States Parties to the Statute will be allowed to decide whether to accept the amendment contained in this resolution at the time of ratification, acceptance or approval of, or accession to the Statute.”

50 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, Annex I (“Resolutions Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court”), UN Doc. A/CONF.183/13 (1998).

51 Andreas Zimmermann, Article 124, in Commentary on the Rome Statute of the International Criminal Court, supra note 10, at 1767, 1769 (margin no. 7).

52 Article 12(3) also indicates that a state not party to the Rome Statute may accept the court’s jurisdiction.

53 SC Res. 2118, supra note 18, para. 2.

54 Id., pmbl., para. 8.

55 Id., para. 15; see also id., pmbl., para. 8, where the Security Council is “stressing that those responsible for any use of chemical weapons must be held accountable.”

56 Given that the Security Council was not acting under Chapter VII when it adopted Resolution 2118, it could have not referred the situation to the ICC anyway. But see the statements made by Luxemburg, UN SCOR, 68th Sess., 7038th mtg., UN Doc. S/PV.7038, at 7 (Sept. 27, 2013) (“The time has come to finally refer the situation in Syria to the International Criminal Court.”) Australia, id. at 15 (“Australia’s assessment is that the evidence available shows that it was the Syrian authorities who were responsible for this crime, and this incident has confirmed what Australia has said for a long time—that the Council should refer the situation in Syria to the International Criminal Court.”).

57 On January 14, 2013, Switzerland had sent a letter to the Security Council on behalf of fifty-eight countries urging the council to refer the situation in Syria to the ICC. see Letter Dated 14 January 2013 from the Charge d’Affaires A.I. of the Permanent Mission of Switzerland to the United Nations Addressed to the President of the Security Council, UN Doc. S/2013/19. See also the conclusions that the European Union Foreign Affairs Council adopted in December 2012 calling on the Security Council to refer the situation in Syria to the ICC. European Council Press Release No. 516, at 11 (Dec. 10, 2012).

58 see UN News Centre, UN Human Rights Chief Renews Call on Security Council to Refer Syria to ICC (July 2, 2012), at http://www.un.org/apps/news/story.asp?NewsID=42377#. UN Secretary-General Ban Ki-moon had himself previously indicated that he welcomed “the debate triggered by the call of some Member States for the Council to refer the situation in Syria to the International Criminal Court.” see Secretary-General’s Remarks to Security Council Open Debate on the Protection of Civilians in Armed Conflict (Feb. 12, 2013), at http://www.un.org/sg/statements/index.asp?nid=6597.

59 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, para. 206(d), UN Doc. A/HRC/24/46 (Sept. 11, 2013).

60 Updated French Draft Resolution on Chemical Weapons in Syria (Sept. 13, 2013) (on file with author).

61 Id.,para. 15 (“refer[ring] the situation in Syria since 1 March 2011 to the Prosecutor of the International Criminal Court”). The resolution would have been mutatis mutandis identical to the two previous Security Council resolutions referring situations to the ICC—namely, Resolution 1593 (Mar. 31, 2005) (Sudan) and Resolution 1970 (Feb. 26, 2011) (Libya).

62 The Syrian Arab Republic signed the Rome Statute on November 29, 2000, and unlike other states such as Israel, Sudan, and the United States, it has not indicated its intention not to ratify it. see UN Treaty Collection, Rome Statute of the International Criminal Court, at http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en.

63 Res. RC/Res.6, supra note 2, Annex I, para. 3(5).

64 Id., para. 4(1).

65 Res. RC/Res.6, supra note 2, Annex III. As to the legal character of these understandings, see more generally Heller, Kevin Jon, The Uncertain Legal Status of the Aggression Understandings, 10 J. Int’l. Crim. L. & Just. 229 (2012)CrossRefGoogle Scholar.

66 Res. RC/Res.6, supra note 2, Annex III, para. 2 (emphasis added).

67 Rome Statute, supra note 1, pmbl., para. 5.

68 This argument is consistent with the terms of the May 2014 Security Council draft resolution to refer violations of international humanitarian law committed in the course of the conflict in Syria (since March 2011) to the ICC prosecutor. see UN Doc. S/2014/348 (May 22, 2014). Unlike the French draft resolution of September 13, 2013, this draft resolution did not contain a specific reference to the use of chemical weapons. This May 2014 draft resolution, while receiving thirteen votes in favor, was not adopted; China and the Russian Federation were opposed. see Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, UN Doc. SC/11407 (May 22, 2014), at http://wwyw.un.org/News/Press/docs/2014/sc11407.doc.htm. In the context of that discussion, the U.S. representative did make reference to the use of chemical weapons and indicate that such crimes, if proven, ought to be punished by the ICC. UN Doc. S/PV.7180, at 5 (May 22, 2014) (Samantha Power).

69 May 23, 1969, 1155 UNTS 331.