Chemical and biological weapons use in the Rome Statute: a case for change
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‘The use of chemical or biological weapons
in armed conflict is a serious crime of
international concern that should be
explicitly prohibited by the Rome Statute.’
VERTIC BRIEF • 14 • FEBRUARY 2011
B R I E F
Chemical and biological weapons use
in the Rome Statute: a case for change
Kara Allen with Scott Spence and Rocío Escauriaza Leal“The Rome 1. Introduction The continued omission of these activi-
ties stems from the inability of delegates
Statute is the The 113,000 tons of chemical agents used
during negotiation of the statute to reach
international during World War I caused 1.3 million
consensus on whether nuclear weapons
casualties.1 As far back as the 14th century,
treaty that biological warfare assisted in spreading the
should be included. Once that issue reached
established the Black Death pandemic—one of the dead-
deadlock, some turned their attention
towards CBW, despite there having been
International liest plagues in history.2 These are just two
no objection to their inclusion up until
Criminal Court, examples of the destructive consequences
that point. Given that nuclear weapons
of chemical and biological warfare. It
a tribunal with are much harder and more expensive to
comes as no surprise, then, that these
the power to ‘weapons of mass destruction’ (WMD)
manufacture than CBW, some delegates
prosecute felt that the omission of a prohibition on
have been the subject of international
the use of nuclear weapons was unfairly
individuals for treaties and resolutions for over a century.
advantageous to countries which had or
The Rome Statute is the international
crimes against could develop them. On the final day of
treaty that established the International
humanity, Criminal Court, a tribunal with the power negotiations, the proposed draft statute
genocide, and to prosecute individuals for crimes against dropped any mention of chemical, bio-
logical, and nuclear weapons. This pro-
war crimes.” humanity, genocide, and war crimes. This
statute, however, does not contain the posal was accepted as there was no time
words ‘chemical weapon’ or ‘biological left to debate the issues, and parties did
weapon.’ Two provisions found in Article 8 not want to risk the failure of the entire
of the statute—which defines war crimes— enterprise due to disagreement on one issue.
may refer to chemical and biological weap- The issue of CBW inclusion resurfaced
ons (CBW) implicitly, but it is unclear prior to the Rome Statute’s ‘First Review
whether all chemical weapons are included, Conference’ in 2010. This meeting was
and whether biological weapons are included the first time amendments to the Rome
at all. Subparagraph (2)(b)(xvii) bans the Statute could be considered. During a
use of ‘poison or poisoned weapons’; pre-conference meeting of parties to the
a prohibition first codified in 1899.3 statute, Belgium proposed an amendment
Subparagraph (2)(b)(xviii), derived from which would add chemical and biological
the Protocol for the Prohibition of the Use of weapons to the list of prohibited weapons.
Asphyxiating, Poisonous or Other Gases, and Although there was considerable support
1 Julian Perry Robinson, The Problem of of Bacteriological Methods of Warfare (1925 for the initiative, the amendment ulti-
Chemical and Biological Warfare, Vol. I:
The Rise of CB Weapons. Stockholm Geneva Protocol), makes the use of asphyx- mately was not submitted to the Review
International Peace Research Institute.
New York, Humanities Press, 1971. p. 128. iating, poisonous or other gases a war crime, Conference; as there was limited time and
2 Id. at 215. but notably not bacteriological weapons.4 a number of issues to consider, only the
3 International Conferences (The Hague),
Hague Convention (II) with Respect to the The Rome Statute is intended to least controversial amendments were for-
Laws and Customs of War on Land and
its annex: Regulations Concerning the encompass ‘the most serious crimes of warded to the meeting. Some delegates
Laws and Customs of War on Land.
Article 23(a). The Hague, 29 July 1899. concern to the international community.’ 5 had raised objections to the Belgian
4 Conference for the Supervision of the
International Traffic in Arms (Geneva),
International law, custom, and jurispru- amendment. The flaws in the grounds on
Protocol for the Prohibition of the Use of
Asphyxiating, Poisonous, or Other Gases,
dence show that CBW use falls within this which these complaints are based suggests,
and of Bacteriological Methods of Warfare.
Geneva, 17 June 1925.
category. Therefore, as this article argues, however, that concerns over the ‘nuclear
5 UN General Assembly, Rome Statute of an explicit ban on such actions should be issue’ may have continued to be an influ-
the International Criminal Court, Preamble.
Rome, 17 July 1998. included in the Rome Statute. ential, albeit underlying, factor.
2 Chemical and biological weapons use in the Rome StatuteThe issue of whether to include nuclear plainly, a serious crime, the issue of CBW “To be included
weapons in the statute, however, should inclusion hinges on the extent to which it
not be tied to the inclusion of biological is a matter ‘of international concern’.
in the Rome
and chemical weapons. Nuclear weapons The prohibition on CBW use in both Statute, a crime
have been treated differently from a legal international and non-international must be both
standpoint. The key treaty involving armed conflicts has reached the status of serious and of
nuclear weapons—the 1968 Non- customary international law, implying an
Proliferation Treaty (NPT)—does not international condemnation of such prac-
concern to the
explicitly ban use, while the most widely tices. Furthermore, the widespread prac- international
known CBW treaties do. In a well-known tice by states of implementing national community.”
advisory opinion, the International Court legislation that criminalizes CBW use as
of Justice wrote that using nuclear weapons a war crime shows that many countries
was not a violation of international law. favour the extension of this prohibition
Though the ICC has not yet heard a case to individuals. Several international legal
which involves chemical and biological instruments also require this extension, as
weapons, there is a clear need to amend explored further below. The pervasiveness
the Rome Statute before such a case does of this condemnation constitutes the level
come before it. As written, the status of of ‘international concern’ required for
CBW use under the Rome Statute is inclusion in the Rome Statute. Use of
ambiguous. This lack of clarity creates chemical and biological weapons should
confusion for parties and court officials, be explicitly criminalized by the Rome
including judges. Technological develop- Statute because they are widely recognized
ments in the chemical and biological in the international community as serious
fields add urgency to clarifying these crimes.
ambiguities. CBW use should be explicitly Customary international law consists
prohibited in the Rome Statute so that the of the ‘general and consistent practice of
ICC can adjudicate CBW use as a war states followed by them from a sense of
crime—and should cover both interna- legal obligation.’7 Simple custom, therefore,
tional and non-international conflicts. is insufficient: a state must feel legally
obligated to follow the practice, a belief
which has been termed opinio juris.
Though there is no universal definition of
2. International law, doctrine,
customary international law, this definition
and jurisprudence support has been widely accepted by the interna-
the addition of unequivocal tional community.8 There is no prescribed
CBW use provisions to the method for determining opinio juris, but
Rome Statute the history of legal prohibitions of a given
To be included in the Rome Statute, a practice may be some reflection of the
crime must be both serious and of con- degree to which avoidance of that practice is
cern to the international community. This perceived as legally obligatory. In addition,
standard is established by Article 1 of the studies of practice, custom, and legislation
6 Supra note 5, Article 1.
Rome Statute, which gives the ICC juris- have developed proposals as to the com- 7 American Law Institute. Restatement
diction ‘over persons for the most serious position of customary international law. of the Law, Third, the Foreign Relations
Law of the United States. St. Paul, Minn.:
crimes of international concern.’6 Since The extent to which courts refer to a prac- American Law Institute Publishers,
1987. §102(2).
use of weapons of mass destruction is, tice as customary international law is also 8 Id. at §102, Reporters’ Notes, 2.
Chemical and biological weapons use in the Rome Statute 3“It was in the indicative of its status as such. In terms of agreements. For example, the International
CBW, all three of these criteria are met to Criminal Tribunal for the Former Yugoslavia
1925 Geneva such a degree that it is very likely both (ICTY) has treated the 1925 Geneva
Protocol that chemical and biological weapons use are Protocol as customary international law.17
biological prohibited by customary international An ICTY appellate chamber noted in an
weapons were law. Indeed, a review of literature on the opinion that ‘there undisputedly emerged
subject shows that most commentators a general consensus in the international
for the first time
regard it as given that CBW use is against community on the principle that the use
addressed international customary law. of [chemical] weapons is also prohibited in
distinctly from Chemical weapons, in particular, have internal armed conflicts.’18 In a 1971 study
chemical long been prohibited by international law. of CBW, the Stockholm International
weapons.” The phrase ‘poison or poisoned weapons, Peace Research Institute (SIPRI) noted
and asphyxiating gases,’ which is generally that ‘the majority of international lawyers
understood to include chemical weapons, 9
today concur. . .that a customary prohibi-
has been prohibited by a number of legal tion of CBW is indeed part of international
documents. Two examples of these are the law.’19 And in 2005, the International
1899 and 1907 Hague Regulations, which Committee of the Red Cross (ICRC)
comprise part of the First and Second Hague published two volumes defining the rules
Conventions, respectively. The conven-
10
of customary international humanitarian
tions were a product of the First Hague law, which included a ban on the use of
9 Jean-Marie Henckaerts and Louise
Doswald-Beck (eds.), Customary Inter- Peace Conference, which was intended to chemical weapons.20
national Humanitarian Law, Vol. I: Rules.
International Committee of the Red ratify laws and customs of war.11 Both reg- The use of biological weapons has a less
Cross. Cambridge, Cambridge University
Press, 2005. pp. 251-254; see Anders ulations have ‘the force of a rule of inter- extensive history of international condem-
Boserup, The Problem of Chemical and
Biological Warfare, Vol. III: CBW and the national customary law,’ and are generally
12
nation. There are several reasons for this
Law of War. Stockholm International
Peace Research Institute. New York, understood to ban chemical warfare. The13
difference. Though biological weapons were
Humanities Press, 1971. pp. 93-96.
10 International Committee of the Red
1925 Geneva Protocol, which bans both most likely used before chemical weapons
Cross. International Humanitarian Law –
Treaties and Documents. Convention
biological and chemical warfare, was drafted had been developed, the history of bio-
(IV) respecting the Laws and Customs of
War on Land and its annex: Regulations
partly in response to the extensive use of logical warfare is not as well-documented
concerning the Laws and Customs of
War on Land. The Hague, October 1907.
chemical weapons during World War I. 14
since its use against human beings ‘is so
Introduction (written by ICRC). Available
at http://www.icrc.org/ihl.nsf/INTRO/
This protocol has 137 parties. The Chemical
15
particularly odious that most governments
195?OpenDocument. Weapons Convention (CWC), which are reluctant to say much about their
11 Id.
12 Boserup, supra note 9, at 93. opened for signature in 1993, bans the use preparations [for use], even in defence
13 Supra notes 3 and 10. of chemical weapons, among other prohi- against it.’21 Given that biological weapons
14 Supra note 1, at 18.
15 United Nations Office of Disarmament bitions. This treaty has 188 parties, meaning can cause afflictions which occur natu-
Affairs: Status of Multilateral Arms Reg-
ulation and Disarmament Agreements:
nearly all states have agreed to its terms. 16
rally, it is very difficult to determine when
1925 Geneva Protocol. November 2010,
available at http://unhq-appspub-01.
This near unanimous membership displays a biological weapon has been used if a
un.org/UNODA/TreatyStatus.nsf/1925
%20Geneva%20Protocol%20(in%20
a widespread view by the international government does not admit to it. When
alphabetical%20order).
community that use of chemical weapons governments have admitted to using bio-
16 Statistics obtained from www.opcw.org.
17 Prosecutor v. Tadíc, Decision on the is a crime, and reinforces over a century of logical warfare, it has historically been in
Defense Motion for Interlocutory Appeal
on Jurisdiction. No. IT-94-I-AR72, condemnation. the context of sabotage attempts against
2 October 1995. ¶¶ 96-127.
18 Id. at ¶ 14.
A range of bodies have concluded that animals.22 It was in the 1925 Geneva
19 Boserup, supra note 9, at 126. chemical warfare is prohibited by custom- Protocol that biological weapons were for
20 Henckaerts, supra note 9, at 259.
21 Supra note 1, at 111.
ary international law, thereby bolstering the first time addressed distinctly from
22 Id. the prohibitions enshrined in the above chemical weapons. The Polish delegation
4 Chemical and biological weapons use in the Rome Statuteto the negotiations on the protocol first also supported by SIPRI. The status of
23 Malcolm R Dando and Kathryn
introduced the idea, proposing that ‘inas- CBW use as customary international law Nixdorff, An Introduction to Biological
Weapons. In: Kathryn McLaughlin and
much as the materials used for bacterio- is significant inasmuch as it shows that Kathryn Nixdorff (eds.). BioWeapons
Prevention Project Biological Weapons
logical warfare constitute an arm that is CBW use by a state is a crime of interna- Reader. Geneva, 2009. p. 13.
discreditable to modern civilization. . . tional concern. One can infer, then, that 24 Supra note 4. The first part of the
declaration states: ‘That the High Con-
any decisions taken by the Conference use by an individual is also a crime of tracting Parties, so far as they are not
already Parties to Treaties prohibiting
concerning the materials used for chemical international concern. [the use in war of asphyxiating, poison-
ous or other gases, and of all analogous
warfare should apply equally to the mate- There is also more direct evidence of a liquids, materials or devices], accept this
prohibition, agree to extend this prohi-
rials used for bacteriological warfare.’ 23
wide consensus that the prohibition on bition to the use of bacteriological
methods of warfare and agree to be
Subsequently, the protocol was broadened both chemical and biological weapons use bound as between themselves according
to the terms of this declaration.’
to extend the commitment of its parties extends to individual criminal liability. 25 Convention on the Prohibition of the
Development, Production and Stockpiling
to prohibiting the use in war of bacterio- The ICRC has noted, with regards to of Bacteriological (Biological) and Toxin
Weapons and on their Destruction. London,
logical weapons. 24
Article 8, subparagraphs (2)(b)(xvii) and Moscow, Washington, D.C., 10 April 1972.
26 Final Declaration, BWC/CONF.IV/9
Agreements made since then signal a (2)(b)(xviii), ‘there is ample evidence that Part II.
continued commitment to preventing such prohibitions entail individual respon- 27 Henckaerts, supra note 9, at 258; see
UN Security Council. Security Council res-
the use of biological weapons. The 1972 sibility.’30 Many states concur with this olution 1540 (2004) [Non-proliferation
of weapons of mass destruction].
Biological Weapons Convention (BWC), assessment, having declared CBW use by 28 April 2004, S/RES/1540(2004); see
also UN Security Council. Security Council
which now has 163 parties, prohibits the individuals a crime. Indeed, according to resolution 1810 (2008). 25 April 2008,
S/RES/1810(2008).
‘development, production, stockpiling, an internal analysis by VERTIC, a third 28 Organization of American States, The
Americas as a Biological and Chemical
acquiring or retention of biological weap- of BWC parties have criminalized indi- Weapons Free Region, 10 June 2003,
AG/RES.1966(XXXIII-O/03); see also
ons.’25 The 1996 Fourth Review Conference viduals’ use of biological weapons and Organization for African Unity, African
Model Legislation for the Protection of
of the BWC affirmed that the use by parties, many others criminalize the intentional the Rights of Local Communities, Farmers
and Breeders, and for the Regulation of
in any way and under any circumstances, infection or intoxication of humans, plants Access to Biological Resources. Algeria,
2000; The Joint Declaration on the Com-
of microbial or other biological agents or or animals with disease-causing agents or plete Prohibition of Chemical and Biological
Weapons (The Mendoza Accord). Mendoza,
toxins, that is not consistent with prophy- toxins. And at the Fourth Review Conference 5 September 1991; European Union:
Council of the European Union, Council
lactic, protective or other peaceful purposes, of the BWC, an understanding was reached Regulation(EC) No 3381/94 of 19
December 1994 Setting Up a Community
is effectively a violation of Article I of the that individuals are covered by the con- Regime for the Control of Exports of Dual-
convention. Several UN General Assembly
26
vention’s prohibitions.31 In addition, many Use Goods. 19 December 1994, 3381/94;
European Union: Council of the European
resolutions encouraging observance of the non-parties to the BWC have prohibited Union, Council Regulation (EC) No 1334/
2000 of 22 June 2000 Setting Up a Com-
BWC have helped to reinforce this princi- individual use. Many countries have some munity Regime for the Control of Exports
of Dual-Use Items and Technology.
ple. Regional organizations, such as the
27
legislation dealing with biological weapons, 22 June 2000, 1334/2000.
29 Henckaerts, supra note 9, at 256.
Organization of American States, have or at least the intentional infliction of dis- 30 International Committee of the Red
Cross, The weapons amendment (Article
also adopted resolutions prohibiting bio- ease, in some way. There is also a clear
32
8.2 letter e) of the ICC Statute). 22 April
2010, available at http://www.iccnow.
logical warfare. 28
prohibition on the use of chemical weapons org/documents/ICRC_The_weapons_
amendment.22april10.1755.pdf.
The considerable body of treaties, by individuals; Article VII of the CWC
31 Supra note 26.
national legislation, state and international explicitly prohibits use by individuals.33 As 32 VERTIC, Biological Weapons Conven-
tion Legislation Database, available at
practice and official statements, demon- of 2010, 126 parties have reported taking http://www.vertic.org/pages/homepage/
databases/bwc-legislation-database/
strates that the use of biological weapons legislative and administrative measures to introduction.php.
33 Convention on the Prohibition of the
is of considerable concern to the interna- implement the CWC, while 182 ‘National Development, Production, Stockpiling
tional community. And, mirroring their Authorities’ have been established to imple- and Use of Chemical Weapons and on
their Destruction (Chemical Weapons
conclusions on the legal status of bans on ment it.34 Moreover, the UN Security Convention), Article I, Article VII(1).
Paris, 13 January, 1993.
chemical warfare, the ICRC concluded Council has made clear its opinion on 34 Organisation for the Prohibition of
Chemical Weapons, CWC National Authori-
that biological warfare is prohibited under individual use of both chemical and bio- ties, available at http://www.opcw.org/
about-opcw/member-states/
customary international law, an opinion
29
logical weapons; the Council’s ‘Resolution national-authorities/.
Chemical and biological weapons use in the Rome Statute 51540’, adopted in 2004, requires states to listing CBW use as a war crime. Observers
implement national measures to prevent corroborate this finding.37 In fact, there
non-state actors from using CBW.35 is very little discussion of CBW in the
records—aside from dismay at their ulti-
35 Security Council resolution 1540 (2004)
[Non-proliferation of weapons of mass
mate removal from both the international
destruction], 28 April 2004, S/RES/1540
(2004): ‘2. Decides also that all States, in 3. History of CBW use and the and non-international conflicts sections.38
accordance with their national procedures, Up until the last day of the conference,
shall adopt and enforce appropriate Rome Statute
effective laws which prohibit any non- CBW use had been included in the draft
State actor to manufacture, acquire,
Despite its history of legal condemnation,
possess, develop, transport, transfer or text. Indeed, even the penultimate draft
use nuclear, chemical or biological CBW use is not explicitly included in the
weapons and their means of delivery, in proposal contained a prohibition on the
particular for terrorist purposes, as well Rome Statute. During negotiations on the
as attempts to engage in any of the use of CBW.39
foregoing activities, participate in them statute, WMD attracted so much atten-
as an accomplice, assist or finance them.’ The abrupt removal of any reference to
36 Michael Cottier, War Crimes: Article 5. tion that one observer commented that its
In: Otto Triffterer (ed.), Commentary on CBW may be partly attributable to the lack
the Rome Statute of the International inclusion was ‘one of the most controver-
Criminal Court, Observers’ Notes, Article of time governments and their delegates
by Article, 2nd edition. Oxford, Hart sial issues’ in the discussions.36 The source
Publishing, 2008. p. 415. had to consider the draft document. Three
of the controversy, however, was not CBW.
37 Id. at 412.
years before the conference, the UN General
38 United Nations Diplomatic Conference The debate was rather focused on whether
of Plenipotentiaries on the Establish- Assembly had established the ‘Preparatory
ment of an International Criminal Court, to include nuclear weapons or not. At a
Summary Record of 9th Plenary Meeting, Committee on the Establishment of an
A/CONF.183/SR.9, 17 July 1998, ¶ 48; late stage in the conference, nuclear weap-
United Nations Diplomatic Conference of International Criminal Court’ to create a
Plenipotentiaries on the Establishment ons were dropped from the draft statute.
of an International Criminal Court, Com- draft for the conference.40 The original
mittee of the Whole, Summary Records of Consequently, delegations which had sup-
the 4th Meeting, A/CONF.183/C.1/SR.4, draft statute contained approximately
17 June 1998, ¶74; Committee of the ported the inclusion of a prohibition on
Whole, Summary Records of the 33rd 1,400 brackets (which represent alternative
Meeting, A/CONF.183/C.1/SR.33, nuclear weapons, shifted their attention
13 July 1998, ¶¶33, 75; Committee of
to opposing a prohibition on CBW, since formulations in UN negotiating texts).41
the Whole, Summary Records of the
34th Meeting, A/CONF.183/C.1/SR.34,
they felt that this would lead to an inequi- The Rome Conference lasted from 15 June
13 July 1998, ¶ 4.
39 Committee of the Whole, Bureau Pro- table situation in which ‘wealthy’ nuclear- until 17 July, 1998, a short time to address
posal, A/CONF.183/C.1/L.59, 10 July 1998.
equipped states were not prohibited from so many alternatives.42 Moreover, towards
40 United Nations, United Nations Diplo-
matic Conference of Plenipotentiaries on
having these weapons, while states that the end of the conference, some states
the Establishment of an International
Criminal Court, 1998, available at
could not afford this technology were re- became increasingly unwilling to com-
http://untreaty.un.org/cod/diplomatic
conferences/icc-1998/icc-1998.html.
stricted from having the more affordable promise43 in an attempt to influence the
41 Philippe Kirsch and John T. Holmes,
The Rome Conference on an International alternative. Essentially, they felt there was final version.44
Criminal Court: The Negotiating Process,
93 Am. J. Int’l L. 2, 3 (January 1999). a lack of reciprocity and balance. By that The primary reason for the deletion,
42 Id. at 3.
stage, however, there was little time left to however, was the omission of nuclear
43 United Nations Diplomatic Conference
of Plenipotentiaries on the Establish- resolve any new debates. In the interest of weapons in the Rome Statute. An option
ment of an International Criminal Court,
Committee of the Whole, Summary proposing a draft which stood the best in the original draft listed nuclear weapons
Records of the 34th Meeting, A/CONF.183/
C.1/SR.34, 13 July 1998, ¶1. chance of ratification, no mention of any use as prohibited.45 States that favoured
44 Supra note 41, at 6.
WMD was included in the final package. this option considered the use of nuclear
45 Preparatory Committee on the Estab-
lishment of an International Criminal The disappearance of an explicit refer- weapons to be prohibited by customary
Court, Report of the Preparatory Com-
mittee on the Establishment of an Inter- ence to CBW was, at first glance, baffling. international law.46 They felt that since
national Criminal Court. Addendum.
Part 1. Draft Statute for the International Initially, the inclusion of CBW use seemed nuclear weapons are WMD, they should
Criminal Court, A/CONF.183/2/Add.1.
14 April 1998. Article 5(B)(o) Option 4. unquestioned. A review of the ‘Summary be included in the Rome Statute.47 Those
46 Roger S. Clark, Building on Article 8(2)
(B)(xx) of the Rome Statute of the Inter- Records’ of both the plenary and Bureau opposed argued that nuclear weapons were
national Criminal Court: Weapons and
Methods of Warfare, 12 New Crim. L. of the Committee of the Whole (BCOW) distinct from other WMD in that their
Rev. 366, 368 (2009).
47 Supra note 41, at FN 32.
meetings shows that, throughout the con- use was not prohibited by international
48 Supra note 41, at 7. ference, delegates did not openly object to law,48 making inclusion in the Rome
6 Chemical and biological weapons use in the Rome StatuteStatute tantamount to new legislation.49 it was ‘essential to maintain the integrity “The history of the
When it became evident the debate was of the package offered in order to avoid
not reaching resolution, BCOW proposed destroying the balance achieved with such
Rome Conference
a draft text that omitted any reference to difficulty and making it impossible to shows that CBW
nuclear weapons. The inclusion of these achieve the ultimate goal of an independ- use was not
weapons had met with too much objec- ent, effective and credible international excluded for
tion to remain in the statute. The removal court.’58 Several delegates expressed con-
reasons specific
of the prohibition on nuclear weapons led tinuing reservations about leaving WMD
some delegations that had opposed its out of the Rome Statute,59 but the time
to chemical
deletion—and had no nuclear weapons of for negotiating had come to an end. and biological
their own—to call for the removal of the The history of the Rome Conference weapons . . .”
ban on CBW. This position evolved from
50
shows that CBW use was not excluded for
a view that ‘if nuclear weapons were not to reasons specific to chemical and biological
be included, then the poor person’s weap- weapons themselves, it rather resulted from
ons of mass destruction, chemical and an external driver, namely, delegates’ inabil- 49 United Nations Diplomatic Conference
of Plenipotentiaries on the Establishment
biological weapons, should not be either.’51 ity to agree on the inclusion of a nuclear of an International Criminal Court, Com-
mittee of the Whole, Summary Records of
At that point, the draft statute was in a weapons use prohibition. These issues, the 4th Meeting, A/CONF.183/C.1/SR.4.
17 June 1998. ¶ 53.
precarious position. The support of both however, should be debated separately. 50 Supra note 36, at 412.
sides, now seemingly lacking, was essential Nuclear weapons differ from CBW 51 Supra note 46, at 376.
52 Supra note 46, at 376.
for the conference to have any concrete from a legal standpoint. In 1993, the 53 Supra note 41, at 10.
outcome. If a majority of states were not World Health Organisation requested an 54 Supra note 41, at FN 32.
55 Supra note 36, at 412.
party to the treaty, the jurisdiction of the advisory opinion from the International 56 United Nations Diplomatic Conference
of Plenipotentiaries on the Establish-
ICC would be ineffective. Trying to arrange Court of Justice (ICJ) on whether the use ment of an International Criminal Court,
Committee of the Whole, Draft, Part 2.
a second round of negotiations might fail. of nuclear weapons was a crime.60 The Jurisdiction, Admissibility and Applicable
Law, A/CONF.183/C.1/L.76/Add.2. 16
With these issues in mind the BCOW ICJ’s advisory opinion noted that state July 1998; see also United Nations Dip-
lomatic Conference of Plenipotentiaries
offered, on the final day of the conference, 52
practice with regards to WMD has been on the Establishment of an International
Criminal Court, Committee of the Whole,
a package designed to appeal to both groups.53 to declare their use illegal in a specific Summary Record of the 42nd Meeting,
This package omitted any explicit men- document, citing the prohibitions con- A/CONF.183/C.1/SR.42. 17 July 1998.
57 United Nations Diplomatic Conference
tion of WMD. Article 8, subparagraphs
54
tained in the CWC and BWC in contrast of Plenipotentiaries on the Establishment
of an International Criminal Court, Com-
(2)(b)(xvii) and (2)(b)(xviii) used the lan- to the absence of any such international mittee of the Whole, Amendments to
A/CONF.183/C.1/L.76/Add.2 Proposed by
guage about poisons and poisonous gases provisions on nuclear weapons.61 The India, A/CONF.183/C.1/L.94. 17 July 1998.
58 United Nations Diplomatic Conference
that had been included in drafts through- NPT is qualitatively different from both of Plenipotentiaries on the Establish-
ment of an International Criminal Court,
out the conference. Article 8(2)(b)(xx), the CWC and BWC. The CWC clearly Committee of the Whole, Summary
Record of the 42nd Meeting, A/CONF.183/
which allowed the possibility of weapons prohibits possession and use, while the C.1/SR.42, 17 July 1998 ¶ 9.
being added in the future, was included BWC prohibits possession, and is now 59 United Nations Diplomatic Conference
of Plenipotentiaries on the Establish-
with the intention of appeasing ‘the vast understood by its parties to prohibit use ment of an International Criminal Court,
Committee of the Whole, Summary
majority of delegations’ who were dis- as well. The NPT prohibits nuclear weap- Record of the 42nd Meeting, A/CONF.183/
C.1/SR.42. 17 July 1998. ¶¶ 32-34.
pleased with the newly shortened list.55 on possession for all states except those 60 Request for advisory opinion made
by the World Health Organization. The
This package was debated on the final day which manufactured and tested a nuclear Hague: International Court of Justice.
1993-09-03. Available at http://www.
of the conference. Although another
56
weapon or other nuclear explosive device icj-cij.org/docket/files/93/10309.pdf.
amendment was proposed that day to before 1 January 1967.62 Notably, it does 61 Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports
include chemical, biological, and nuclear not contain a prohibition on use. 1996, International Court of Justice (ICJ).
8 July 1996 ¶57.
weapons use, it was not successful.57 Norway Ultimately, the ICJ concluded that 62 Treaty on the Non-Proliferation of
Nuclear Weapons. New York, 1 July 1968.
proposed ‘no action’ on the grounds that there was ‘in neither customary nor con- Article IX(3).
Chemical and biological weapons use in the Rome Statute 7ventional international law any compre- amendment, along with an objection to
hensive and universal prohibition of the referencing the CWC and BWC.
threat or use of nuclear weapons.’63 Though Initially, the proposed amendment on
states had refrained from using nuclear CBW use had garnered strong support. It
weapons since 1945, the Court held that was co-sponsored by 13 other states68 who
there was no opinio juris since this forbear- considered the recommendation to be jus-
ance could have been the result of circum- tified on the basis that such prohibitions
63 Supra note 61, at ¶105 (2)B.
stances rather than motivated by a sense were thought to be customary international
64 Supra note 61 at ¶66. of legal obligation.64 law by many states.69 Progress was halted,
65 Supra note 5, at Article 121, Part 1.
66 Belgium, Draft Amendments to the
Although the inclusion of nuclear however, at the penultimate stage of the
Rome Statute on War Crimes, Amendment 2. weapons use in the Rome Statute is indis- amendment process. Any proposed amend-
29 September 2009. The provisions of
the amendment which pertain to CBW putably an important and contentious ment to the Rome Statute must be consid-
read: ‘xxvii) Using the agents, toxins,
weapons, equipment and means of issue, the decision over whether to list ered at a meeting of the Assembly of States
delivery as defined by and in violation of
the Convention on the Prohibition of the the use of CBW as a crime in the Rome Parties (ASP)—the management oversight
Development, Production and Stockpiling
of Bacteriological (Biological) and Toxin Statute should not depend on the outcome and administrative body for the ICC—
Weapons and on their Destruction,
London, Moscow and Washington, of the nuclear weapons debate. before it can be adopted or considered at a
10 April 1972’ and ‘xxviii) Using or engag-
ing in any military preparations to use
chemical weapons as defined by and
Review Conference.70 Belgium’s amendments
in violation of the Convention on the
Prohibition of the Development, Produc-
were submitted to the eighth session of
tion, Stockpiling and Use of Chemical
Weapons and on Their Destruction, Paris,
4. CBW use and the First the ASP,71 with the caveat by Belgium it
13 January 1993.’
67 Belgium, Draft Amendments to the
Review Conference would only submit amendments to the
Rome Statute on War Crimes, Amendment 1. Review Conference which received ‘over-
29 September 2009; see Resolution RC/ The CBW prohibition issue was revived in
Res.5 Amendments to Article 8 of the
the period preceding the First Review whelming support’72 at the ASP meeting.73
Rome Statute. 16 June 2010 for the final
resolution adopting the amendment.
Conference of the Rome Statute in 2010. The CBW amendment, despite substan-
68 Argentina, Bolivia, Burundi, Cambodia,
Cyprus, Ireland, Latvia, Luxembourg, Article 121 of the Rome Statute, which speci- tial support, met with some opposition.74
Mauritius, Mexico, Romania, Samoa,
and Slovenia proposed the amendment fies how the document may be amended, With multiple amendments being pro-
along with Belgium.
prohibited the consideration of amend- posed, it was feared there might not be
69 Supra note 66.
70 The ASP was established by Article ments until that year.65 Belgium–which sufficient time to consider each of them
112 of the Rome Statute. See note 6,
at Article 121 part 2 for procedural had first-hand experience of the fatal adequately.75 Some insisted that an exten-
requirements.
71 Assembly of States Parties, 8th Ses- consequences of chemical warfare during sive examination was needed because only
sion, The Hague, 18-26 November 2009,
see http://www.iccnow.org/?mod=asp8. World War I– proposed an amendment to amendments which enhanced the univer-
72 Assembly of States Parties, Eighth add provisions rendering CBW use a war sality of the Rome Statute should be added.76
Session, Report of the Bureau on the
Review Conference, Addendum, Annex I: crime in both international and non-in- In addition, because the Review Conference
Belgium: Proposal of amendments,
ICC-ASP/8/43/Add. 1. 10 November ternational armed conflicts. The amend- would only provide sufficient time to review
2009, p. 3.
73 Assembly of States Parties, Eighth ment referred to language from the CWC a few proposals and, since other proposed
Session, Report of the Bureau on the
Review Conference, ICC-ASP/8/43. and the BWC.66 Another amendment amendments were considered more impor-
15 November 2009. ¶33.
tabled by Belgium proposed extending the tant than the CBW amendment, it was
74 In addition to the adopted Belgian
amendment, delegates at the Review prohibitions in Article 8, subparagraphs dropped. Another objection posited that
Conference also adopted an amendment
which added the crime of aggression (2)(b)(xvii) and (xviii) on poisons and poi- utilizing language from the BWC and
to the Rome Statute. See Resolution
RC/Res.6, The crime of aggression. sonous gases to non-international armed CWC would have the effect of ‘compul-
11 June 2010.
75 Supra note 73, at ¶34; Assembly of conflicts.67 This amendment was adopted, sory universalization’ of those treaties.77
States Parties, Eighth Session, Annex II,
Report of the Working Group on the but the CBW amendment was ultimately Delegates were concerned that states that
Review Conference, ¶ 30, available at
http://www.icc-cpi.int/iccdocs/asp_ not considered at the Review Conference. had not yet become parties to the Rome
docs/RC2010/WGRC-ENG.pdf.
76 Supra note 73, at ¶34
This omission resulted from insufficient Statute would hesitate to join if they had
77 Supra note 73, at ¶ 36. time for countries to consider the proposed the impression they were also acceding to
8 Chemical and biological weapons use in the Rome Statutethe BWC and CWC. Though some 139 during the Rome Conference, however, it “The lack of
countries have become parties to the statute, is likely it would still be acceptable now.
many outliers remain. The discussion above suggests that both
clear provisions
The first concern does not exclude a the failure to address CBW at the Review prohibiting CBW
CBW use amendment in the future. The Conference and the original omission of use is highly
Rome Statute is a legal document used to an explicit CBW use prohibition in the problematic.
prosecute international crimes. Every Rome Statute may not have arisen from a
Clearly defining
important deficient area should be consid- belief that CBW use is permissible. Given
ered and changed if necessary, not just those the current views of the international com- crimes is of crucial
deemed to need alteration most urgently. munity, the explicit inclusion of a prohibition importance,
Now that the seven year procedural bar on CBW use should not discourage non- both for parties
on amendments has passed, a state may parties to the Rome Statute from joining.
and judiciary
propose an amendment at any time. 78
As for the second concern, incorporat-
officials.”
ing language from the BWC and CWC 5. Critique of the current
would not imply universalization of either. provisions
The Belgian amendment called for Article 8,
The preceding discussion has shown that
subparagraph 2(b) of the Rome Statute to
the use of chemical and biological weapons
include:
does fall under ICC jurisdiction as defined
by the Rome Statute, and the continued
‘xxvii) Using the agents, toxins, omission of an explicit prohibition on this
weapons, equipment and means of is consequently not valid. The following dis-
delivery as defined in the [BWC]; cussion will show why the statute requires
xxviii) Using chemical weapons or an unequivocal treatment of CBW use.
engaging in any military preparations The lack of clear provisions prohibiting
to use chemical weapons as defined by CBW use is highly problematic. Clearly
and in violation of the [CWC].’ 79
defining crimes is of crucial importance,
both for parties and judiciary officials. In
Other prohibitions in those treaties, its current state, the Rome Statute does
such as developing or stockpiling CBW, not prohibit the use of biological weapons
are not included. Belgium chose the and the provisions regarding chemical
language above to expedite discussion of weapons may not include all chemical
terminology and the scope of the biologi- weapons. Recent technical advancements
cal and chemical weapons provisions. 80
have added urgency to the need to clarify 78 Supra note 5, at Article 121 Part 1:
‘After the expiry of seven years from the
Furthermore, a CBW use amendment these ambiguities. entry into force of this Statute, any State
Party may propose amendments thereto.’
need not utilise the language of either treaty. From the outset of the Rome Conference, 79 Supra note 62.
One alternative is to use the original Rome the International Committee of Jurists 80 Supra note 73, at ¶ 37.
81 Committee of the Whole, Bureau
Conference draft language. The draft pro- stressed the importance of defining crimes Proposal, A/CONF.183/C.1/L.59.
10 July 1998.
hibited employing ‘Bacteriological (bio- clearly because vague provisions could 82 Supra note 45, at Article 5(B)(o)
Option 1 prohibits use of: ‘chemical
logical) agents or toxins for hostile purposes create difficulties. For example, a state weapons as defined in and prohibited
or in armed conflict’81 and similarly using official or other individual falling under by the [CWC].’
83 International Commission of Jurists,
chemical weapons, ‘as defined in and pro- the jurisdiction of the Rome Statute might Definition of Crimes, ICJ Brief No. 1 to the
UN Diplomatic Conference of Plenipo-
hibited by the [CWC].’82 Given that none unknowingly violate the law, or plead tentiaries on the Establishment of an
International Criminal Court, Rome,
of the delegates objected to this terminology ignorance when they do.83 June 1998. p 3.
Chemical and biological weapons use in the Rome Statute 9“The failure to Moreover, crimes must be clearly defined ability to inflict damage or cause disease,
to be effectively adjudicated; lawyers and which are not used for prophylactic, pro-
explicitly judges need a clear legal instrument to tective or other peaceful purposes.90 Toxins
prohibit CBW perform their functions effectively.84 The are poisonous substances produced by a
use, however, ambiguity in the Rome Statute with living being.91 Therefore, toxin weapons
is a flaw that regards to CBW might lead prosecutors are either toxins or chemicals.92 The BWC
to avoid charges which involve CBW and prohibits the misuse of ‘microbial or other
should now be have a similar chilling effect on judges— biological agents, or toxins,’ implying
remedied.” resulting in overly cautious interpretations.85 these are distinct categories.93 Since bio-
It is especially important that the war logical weapons are named distinctly from
crimes portion of the Rome Statute is toxin weapons, the term ‘toxin’ excludes
unambiguous, because these determine biological weapons by implication.94 Being
when cases may be brought, and when neither toxins nor chemicals, biological
offences have been committed. If the weapons do not fall under the category
parameters of a crime are not clearly of ‘poison.’
defined, the resulting ambiguity can lead The terms ‘poisons’ and ‘poisonous gases’
to judicial inconsistencies. might also exclude at least some types of
The vagueness of Article 8, subparagraphs chemical weapon. At one extreme, some
2(b)(xvii) and 2(b)(xviii) has already created interpret the Rome Statute, which includes
84 Id.: ‘. . . the crimes within the ICC juris-
diction should be defined with clarity a significant ambiguity over biological both terms, to exclude both chemical and
and precision not only to avoid igno-
rance in the law and to provide a useful weapons. The language ‘asphyxiating, biological weapons.95 Further, the negoti-
tool to the practitioner, but for the provi-
sion of adequate instructions to the poisonous or other gases, and of all analo- ating history, in which delegates refused
judges, prosecutor, and the defence.’
85 Marlies Glasius, Criminalise WMD. gous liquids, materials or devices’ in sub- to ratify a treaty with CBW, has led some
3 September 2009, available at http://
www.opendemocracy.net/article/
paragraph 2(b)(xviii) is taken from the commentators to conclude that the statute
email/criminalise-wmd.
1925 Geneva Protocol; yet one of the must be interpreted to exclude them.96 The
86 Markus Wagner, The ICC and its Jurisdic-
tion—Myths, Misperceptions and Reali- purposes of this treaty, to extend these less extreme view posits that only some
ties. 8 April 2003. In: A. von Bogdandy
and R. Wolfrum (eds.), Max Planck Year- prohibitions to ‘the use of bacteriological kinds of chemical weapons are excluded.
book of United Nations Law, Vol. 7. The
Netherlands, Koninklijke Brill N.V., 2003. methods of warfare,’ is not part of the Though ‘asphyxiating, poisonous or other
p. 460.
87 Supra note 23, at 2.
Rome Statute. Some commentators have gases, and of all analogous liquids, materi-
88 Supra note 36, at 413. remarked that this omission means bio- als or devices’ has widely been interpreted
89 Assembly of States Parties, Elements
of Crimes, Article 8(2)(b)(xvii) War logical weapons are not included.86 Others to include some chemical weapons, other
Crime of Employing poison or poisoned
weapons, ICC-ASP/1/3. 9 September assume as a given that biological weapons chemical agents, such as irritants, may
2002. p. 139.
are included,87 on the premise that the not be included since97 they are not poi-
90 Supra note 20, at 8; see UN General
Assembly, Resolution 2603(XXIV) A poisoned weapons term is ‘the first sons. Regardless of which side is correct,
Question of chemical and bacteriological
(biological) weapons. 16 December 1969, prohibition’ of both chemical and bio- this lack of consensus reflects a need for
A/RES/2603(XXIV)A.
91 Supra note 23, at 9. logical weapons.88 clarification.
92 Supra note 36, at 420. An examination of the terminology,
93 Supra note 25, at Article 1, emphasis
added. The fact that the title of the Con- however, indicates that the word ‘poison’
vention itself treats the terms biological
and toxin as separate categories is also does not include biological weapons. The 6. Conclusion
significant.
94 Supra note 36, at 414.
‘Elements of Crimes’ addition to the Rome Drafting the Rome Statute was a challeng-
95 Supra note 36, at 415. Some delegates Statute defines a poison as a substance ing task which was not executed flawlessly.
at the Rome Conference were unaware
that this language was understood to which causes death or serious damage to The failure to explicitly prohibit CBW
include chemical weapons.
96 Gerhard Werle, Principles of Interna-
health in the ordinary course of events use, however, is a flaw that should now be
tional Criminal Law. The Hague, T.M.C.
Asser Press, 2005. p. 371.
because of its toxic properties.89 Biological remedied. Prohibitions on CBW use are
97 Boserup, supra note 9, at 41. weapons are microorganisms with the widely recognized as customary interna-
10 Chemical and biological weapons use in the Rome Statutetional law and apply to states as well as to which have increased the availability and “This paper
individuals. Therefore, the use of chemical effectiveness of CBW. In 2005, the ICRC
or biological weapons in armed conflict is a issued a cautionary statement warning of
recommends
serious crime of international concern that the increased risk of biological warfare in that a new
should be prohibited by the Rome Statute. light of recent biotechnological develop- amendment
The Rome Conference could not accom- ments.98 The Chair of the Sixth Review which explicitly
modate the inclusion of CBW use in a Conference of the BWC remarked that
more explicit manner due to the unre- technological advances mean biological
prohibits CBW
solved debate about nuclear weapons. weapons are less costly to make, more use in both
The removal of a prohibition on nuclear powerful, and harder to detect.99 The rise international
weapons use created opposition to a ban of dual-use technology, i.e. technology and non-
on biological and chemical weapons use. that can be used for both military and
Since the issue could not be resolved in civilian purposes, has added to the risk
international
the time allotted to the conference, the of CBW use. For example, the common conflicts should
drafters chose instead to omit any mention chemical chlorine has been used as a be proposed to
of all three. However, there is no question chemical weapon.100 There is also a grow-
the Assembly of
that the use of chemical and biological ing fear that terrorists might use published
weapons is treated differently in interna- scientific reports to develop biological or
States Parties.”
tional law to the use of nuclear weapons; chemical weapons.101 Dual-use technology
the NPT does not ban use, unlike the BWC has become more available and access to
and CWC, which do. information has widened, making it increas-
The Review Conference did not address ingly important to have clear legal controls
the CBW question. This omission may be on it.
partly attributable to the nuclear issue. This paper recommends that a new
Certainly, the openly expressed concerns amendment which explicitly prohibits
could be easily addressed. Fears about CBW use in both international and non-
universalization of the CWC and BWC international conflicts should be proposed
are unmerited given that an amendment to the Assembly of States Parties.
would only incorporate definitions of
98 Jacques Forster, Preventing the use
terms, rather than operational language. of biological and chemical weapons: 80
years on, ICRC, Official Statement.
Moreover, the Review Conference was 10 June 2005, available at http://www.
icrc.org/web/eng/siteeng0.nsf/html/
the first meeting in which amendments gas-protocol-100605. See also an ICRC
Statement to the same effect from 2002.
to the Rome Statute could be considered. ICRC, Official Statement, Appeal on Bio-
technology, Weapons and Humanity.
Naturally, an influx of proposed amend- 25 September 2002, available at http://
www.icrc.org/web/eng/siteeng0.nsf/
ments would accrue over a 12 year period. html/5EAMTT.
This initial period has ended, however, 99 Ambassador Masood Khan (Pakistan),
Opening Statement by the President of the
leaving time to consider afresh an explicit Sixth Review Conference of the Biological
Weapons Convention. 20 November 2006,
prohibition in the Rome Statute on CBW available at http://www.unog.ch/80256EDD
006B8954/(httpAssets)/B3815E96CB8D
use in international and non-international 2000C125722C003A59C9/$file/BWC-
6RC-Statement-061120-President.pdf.
armed conflict. The ICC has not yet had 100 Organisation for the Prohibition of
Chemical Weapons, Brief Description of
a case of CBW use before it, but it is crucial Chemical Weapons, available at http://
www.opcw.org/about-chemical-
that the Rome Statute which guides it is weapons/what-is-a-chemical-weapon.
unequivocal before that circumstance occurs. 101 Parliamentary Office of Science and
Technology, The Dual-Use Dilemma,
Such a change is particularly pressing in postnote, No. 340. July 2009. p 1.
available at http://www.parliament.uk/
light of recent technological advancements documents/post/postpn340.pdf.
Chemical and biological weapons use in the Rome Statute 11Editor
Larry MacFaul
About this paper
The Rome Statute is intended to encompass ‘the most serious crimes of concern to the inter-
Design and layout national community.’ International law, custom, and jurisprudence show that the use of
Richard Jones
chemical and biological weapons falls within this category. However, the treaty does not
ISSN contain a clear ban on the use of either type of weapon. This brief examines why this omis-
1740-8083 sion occurred and argues that an explicit prohibition on such actions should be incorporated
© VERTIC 2011 into the statute.
By Kara Allen with Scott Spence, VERTIC Senior Legal Officer, and Rocío Escauriaza Leal,
VERTIC Legal Officer.
VERTIC is an independent, not-for-profit Board of Directors Gen. Sir Hugh Beach, GBE, OBE, KCB,
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