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Can the ICC Prosecute for Use of Chemical Weapons in Syria?

Published on August 23, 2013        Author: 

Recent reports regarding the possible use of chemical weapons in Syria are very disturbing indeed. If it turns out that there is concrete evidence that chemical weapons have been used, many will hope this will (finally) provoke action by the Security Council. There will inevitably be calls for accountability of those responsible and hopes that the Syrian situation will be referred to the International Criminal Court (ICC). But even if the Syrian situation is referred to the ICC, can the Court prosecute for use of chemical weapons in Syria.

As Syria is not a party to the Statute of the International Criminal Court, the ICC will only have jurisdiction over events in Syria if there is a Security Council referral (Arts 12 & 13, ICC Statute). If the Council were to refer the situation in Syria, it is possible that attacks involving the use of chemical weapons may be prosecuted as part of a charge of crimes against humanity or as part of the war crime of intentionally directing attacks against a civilian population. In such a case, the use of chemical weapons would not form part of the core of the charge but would simply be the means by which the attack has taken place. Proving use of chemical weapons would not be necessary to sustain either charge. However, it is interesting to consider whether the use of chemical weapons would itself be a crime under the ICC Statute in the Syrian situation. I think the answer is yes, but, perhaps surprisingly, the answer is not as straightforward as one might have thought or would have hoped.

Does the ICC Statute Specifically Prohibit the Use of Chemical Weapons?

Despite attempts to include a provision that would have specifically and expressly criminalised the use of chemical weapons, the ICC Statute adopted in Rome 1998 did not mention chemical weapons by name (see Bill Schabas’ post here). However, Article 8(2)(b) of the Statute dealing with war crimes includes 3 provisions that might be interpreted as applying to chemical weapons. Art. 8(2)(b)xvii makes it a war crime to employ “poison or poisoned weapons”. Para. xvii refers to “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. Para. xx makes it a war crime to employ “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. . . .” However, that last provision only prohibits those weapons if they are subject to a comprehensive prohibition and included in an annex to the Statute. Unfortunately, no annex to this provision has been agreed so no one can (yet) be prosecuted under para xx.

An argument has been made that the provisions of the ICC Statute listed above do not cover chemical and biological weapons(see discussion of this argument in the article by my friends’ Amal Alamuddin and Philippa Webb 2010 JICJ at, pp. 1227-8]. This argument is based on the drafting history of Art 8 where it was first proposed to include an explicit prohibition of chemical and biological weapons. However, those provisions were removed from the final draft at the same time as a broad provision prohibiting weapons causing unnecessary suffering was narrowed to extend to only those weapons specifically listed in an annex (which was never agreed). That latter provision was thought too broad as it could have extended to nuclear weapons. As Bill Schabas noted on his blog back in April:

“The removal of an explicit reference to bacteriological and chemical weapons coincided with a removal of the broad general provision capable of covering nuclear weapons. This was a compromise designed to appease some non-nuclear states, who felt that excluding nuclear weapons alone smacked of hypocrisy. After all, chemical weapons were the ‘poor man’s’ weapon of mass destruction.”

The argument that chemical weapons are not covered by Art. 8 is thus based on the removal of the explicit prohibition and the fact that it was thought that it would be the annex to the Statute that would set out those weapons like chemical weapons that are deemed are indiscriminate and cause unnecessary suffering.

However, it is erroneous to interpret a treaty primarily by reference to drafting history. Under Art. 32 of the Vienna Convention on the Law of Treaties, the drafting history is only to be used as a supplementary or secondary tool of interpretation to resolve ambiguity. As Art. 31 of the VCLT indicates and ICJ has stated, the interpreter must start with the text of the treaty. Thus one must start by looking to see what the words of the treaty as agreed actually means.  It seems to me that the words “poison or poisoned weapons” and more clearly “asphyxiating, poisonous or other gases” would cover a variety of chemical weapons. The latter wording is taken from the Geneva Gas Protocol which was intended to cover chemical weapons. Although the Chemical Weapons Convention of 1993 does not use this wording (referring instead to “Toxic chemicals”), this does not mean that the wording of the ICC Statute does not extend to chemical weapons. Although weapons not in the form of a gas are not covered by para xvii, it is also arguable that. The words ‘poisonous’ and ‘toxic” are largely synonymous. The Oxford English Dictionary defines “toxic” as: “of the nature of a poison; poisonous”. Moreover many chemical weapons cause death or injury by asphyxiation. Indeed, it would be difficult to give any meaning to para. xvii if it did not cover chemical weapons. [UPDATE: The last four sentences of this paragraph were amended/added after the post was originally written. The words deleted are clearly incorrect since para. xvii refers also to “analogous liquids, materials or devices”, see previous para]

Although the Rome Statute can and should be read as also prohibiting chemical weapons, Art. 8(2)(b)applies only to international armed conflicts and the crimes in the provisions just quoted were not repeated in the list, set out in Art. 8(2)(e), of war crimes in non-international armed conflicts. Thus, even assuming that these provisions apply to chemical weapons, the ICC was not given jurisdiction to prosecute the use of chemical weapons in a non-international armed conflict. The Syrian conflict, is considered to be a non-international armed conflict and under the 1998 Rome Statute, the matter would have been rather straightforward. The Court would have lacked jurisdiction to prosecute for the use of chemical weapons as a crime in and of itself. This is despite the fact that in the Tadic Case [paras. 119-128], the ICTY Appeals Chamber stated (in 1995!) that international law prohibited the use of chemical weapons in internal armed conflicts and suggested that this prohibition was also present in international criminal law.

Happily, the restriction in the ICC Statute of the provisions dealing with banned weaponry to international armed conflicts was corrected in the Kampala Review Conference in 2010. At that conference, parties to the ICC Statute adopted an amendment to Article 8(2)(e) which extends the list of war crimes in non-international armed conflicts to include “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” [Art. 8(2)(e)(xiii) & (xiv)]. Under Article 121(5) this amendment will come into force for each State party that ratifies it. Only 8 States have ratified this amendment thus far. The second sentence of Art. 121(5) provides that: “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 Party’s nationals or on its territory.”

Can the Security Council Refer Crimes in the Kampala Amendment?

The question that arises is whether a Security Council referral would be a referral that grants jurisdiction to the ICC on the basis of the ICC Statute adopted in Rome in 1998 or the amended ICC Statute.

Although the amendments to Art. 8 are only in force for a few State parties, the purpose of Security Council referrals to the ICC is to expand the jurisdiction of the ICC to cover acts by nationals of non-parties or on the territory of non-parties. On this view, the fact that Syria or any other State is not a party to the Art. 8 amendment ought not to stand in the way of ICC exercise of jurisdiction with respect to the amendment. As soon as the amendment was adopted, it became part of the ICC Statute. The amendment is not binding on States that have not ratified it but this is the same as the ICC Statute was not binding on Libya or Sudan (or persons connected with them) until the SC referred the situation in those countries to the ICC.

Significantly, although the amendment to Art. 8 does not specifically refer to Security Council, the aggression amendments also adopted in Kampala specifically envisage Security Council referrals. ICC parties assumed that in the case of a Security Council referral, the ICC can exercise jurisdiction over aggression committed by non-parties, or States that don’t ratify the aggression amendments, once the conditions set out in the aggression amendments are met.

However, there is one difficulty with this assumption that the Security Council referrals cover crimes added by amendments. That difficult arises from the second sentence of Art. 121(5) quoted earlier. That provision, which is directed at the Court, says that the Court “shall not exercise jurisdiction regarding a crime covered by [an] amendment”  when committed by the national of, or on the territory, of a State party that has ratified the amendment. The correct interpretation of this provision has been the source of much controversy (especially as to whether it amends the jurisdictional provisions in Art. 12). However,  what is relevant for our purpose is that in adopting the Art. 8  amendment, ICC Review Conference “confirm[ed] its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute”. Thus on this view, the Court shall not exercise jurisdiction over crimes covered by the amendment when committed by a national of a non-State party or on its territory. The purpose of this understanding was to provide equality between non ICC parties and those States parties that do not ratify an amendment.

If the Statute says the Court shall not exercise its jurisdiction (and does not provide any exception in Art. 121(5)) with respect to States that have not ratified an amendment, it could be argued that any Security Council referral must also exclude crimes covered by the amendment. As stated above this would seem inconsistent with the assumption of the parties with regard to aggression. It could be argued that Art. 121(5) only applies in cases where the trigger mechanism for ICC jurisdiction is a state referral or the prosecutor investigating propio motu. However, Art. 121(5) does not say this. However, one could imply this restriction from the fact that Art 121(5) seeks to provide a jurisdiction based on State consent, whereas SC referrals are not based on State consent.

In conclusion, were the Security Council to refer the situation in Syria to the ICC, the Court would have jurisdiction to prosecute specifically for use of chemical weapons.

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26 Responses

  1. Jordan

    Dapo: you are correct, despite the counterclaims over at Opinio Juris re: treaty interpretation. No state necessarily controls the ordinary meaning of a treaty, especially over time. “Consent” is not the driving criterion. See also the Realist views noted in http://ssrn.com/abstract=2293188
    Brierly had noted an interesting difference between expectations and consent that is also relevant (especially with respect to what opinio juris is reflecting), and customary international law is also a necessary background for continual meaning or interpretation of international agreements.

  2. Dapo, great analysis, as always.

    One point of possible disagreement I would have with you is that the VCLT actually applies to the Rome Statute. While this is generally unchallenged, I would argue otherwise, as I explain over at Spreading the Jam. I would be happy for any thoughts you might have on this.

    http://dovjacobs.blogspot.nl/2013/08/why-vienna-convention-should-not-be.html

  3. This is not a situation in which a small group of states “controls the ordinary meaning of a treaty.” No state rejected the idea that dropping the chemical weapons provision meant that chemical weapons were not directly criminalized; that is why a number of states made statements protesting their exclusion.

    Jordan provides no justification for permitting “ordinary meaning” to trump the meaning that the drafters of the Rome Statute intended. Nor could he, because there is no such justification. Ignoring the intended meaning is simply a way for human-rights activists to create the Rome Statute that they wanted, not the Rome Statute that was actually drafted and accepted by states.

  4. Joost

    Kevin,

    You provide no justification for permitting “intended meaning” to trump the ordinary meaning of the terms that States agreed to include in the Rome Statute. Nor could you, because there is no such justification. Ignoring ordinary meaning is simply a way for naysayers to create the Rome Statute that they want, not the Rome Statute that State Parties to the VCLT should have been aware that they were creating.

    Best,

    Joost

  5. Joost,

    Thank you for making my point. Defenders of permitting “ordinary meaning” to trump the clear intended meaning of important treaty provisions end up arguing that states are bound to provisions they “should have been aware they were creating.” Sorry, states, I know you intended to create a Rome Statute that did not criminalize chemical weapons. And yes, the success of the Rome Statute depended upon your carefully negotiated, if rather normatively unsatisfactory, agreement to exclude both chemical weapons and nuclear weapons. But you should have known that using the word “poison” would undo all of your good work, because we can find a dictionary in which the “ordinary meaning” of poison includes chemical weapons. Better luck next time.

    Yes, indeed, that is a sound approach to treaty interpretation.

    Best,

    Kevin

  6. PS. As an aside, I most certainly did provide a justification for permitting intended meaning to trump ordinary meaning: only that approach to treaty interpretation respects the fact that treaties, unlike custom, are the expression of sovereign will. I also pointed out that, if ordinary meaning is permitted to trump intended meaning, resulting in treaty provisions being interpreted and applied in a manner that frustrates sovereign will, states will inevitably be less willing to joint multilateral treaties that depend on judges for their interpretation.

    Against that, what is your justification for permitting ordinary meaning to trump intended meaning? “Because the VCLT says so” doesn’t strike me as a very persuasive one, but perhaps it does for you.

  7. Joost

    Kevin,

    The question whether the ordinary meaning of “poison” include “chemical weapons” is a different one. Don’t be silly.

    Chemical weapons that actually use poison are no doubt prohibited by the Rome Statute. The fact that States intended to exclude chemical weapons altogether from the treaty does not itself limit the ordinary meaning of the text.

    Best,

    Joost

  8. Joost

    PS. Maybe you should rewrite the VCLT.

  9. Someone certainly should. The VCLT’s epistemological incoherence reflects the fact that it was drafted in an era in which interpretation was still viewed, wrongly, as a largely mechanical and objective process. In the wake of critical legal studies and neo-pragmatism in literary theory, the VCLT’s naive emphasis on “ordinary” meaning — found by looking words up in dictionaries — is woefully outdated.

  10. Joost

    Kevin,

    Thanks for making my point.

    Have a blessed Sunday!

    Joost

  11. Not sure what your point was or how I made it. I’ll look up the words in the sentence in the dictionary and figure out what you intended to say.

    You have a good Sunday, too! Alas, it’s basically over in Australia.

  12. Joost

    My point was: you don’t look up words in a dictionary to figure out what whoever said them intended to say. You look up words in the dictionary to figure out what the words themselves say.

    Aw, Australia, land of kangaroos…

  13. Dapo Akande

    I am grateful to Kevin for raising the issue of treaty interpretation which he raises in his really interesting post over at Opinio Juris [I apologise that our trackback feature did not pick up his post immediately]. His comments set out the issue quite clearly: should the ordinary meaning of a treaty text trump the intention of the parties with regard to that treaty. My answer to that question is yes! This is what the VCLT says but I answer that question in affirmative because I also think the VCLT was right to say so.

    The reason to prefer ordinary meaning to the supposed intention of the parties, particularly in a multilateral treaty, is because the intention of the parties can be and is often difficult to glean apart from the actual words used. In other words, one should only very rarely conclude that ordinary meaning and clear words do not reflect the intention of the parties One might say, “but we can glean the intention from drafting history and if that differs from the words we should use that”. The problem is that the drafting history is often fragmentary and incomplete, in the case of multilateral treaties. Some (usually very few) states will say something on the record about a particular text and the majority will not. Then the temptation is to draw inferences from the way in which the negotiations proceeded (what was changed, what was left out, when the changes were made, in what order etc). But all of that will usually be assumptions about what all the parties intended. They may be logical assumptions but are still assumptions.

    Different States may have different reasons for making particular changes, inserting particular words etc. Indeed members of the delegations of the same State may have different thoughts with regard to particular texts. Apart from the point made above, a number of personal experiences regarding the usefulness of drafting history also lead me to the conclusion that it is often unreliable. In writing a piece some years ago about the ICC, I sent the piece to two members of a State’s delegation at Rome in 1998. This is a State that was intimately involved in the negotiations and takes these things seriously. The two members of the same State’s delegations gave me different responses about what was intended with respect to a particular provision of the Rome Statute! This is the same State! When one then broadens that out to nearly 200 States the problem is of course magnified. A couple of weeks after the Kampala Review Conference, I attended a meeting in which a number of state representatives who were in Kampala were also present. I asked them about what was intended with respect to whether the consent of the alleged aggressor State would be necessary for the ICC prosecutions with respect to aggression and received different answers.

    The particular issue of chemical weapons and the ICC Statute illustrates this problem of how do we glean intention, apart from the words used. Kevin makes the assumption that by deleting the specific reference to “chemical weapons” at the same time as the reference to “nuclear weapons” was deleted, States were intending not to criminalise the use of chemical weapons directly. As likely is that States simply could not stomach a text that would specifically mention chemical weapons while not specifically mentioning nuclear weapons. This might have been regarded as just politically unacceptable. This does not mean that they did not realise that the Statute actually does criminalise the use of chemical weapons. I do not think that the lawyers were so bad that they did not realise that in all probability chemical weapons were still caught by the wording of the Statute left in. Just like lawyers for the P5 are not so bad that they failed to realise that just because the words “nuclear weapons” were removed does not mean that it is possible to include the use of nuclear weapons in the provisions dealing with “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices”. Quite likely that the game being played was simply the political one of let’s not specifically mention these weapons and most certainly lets not mention one without mentioning the other.

    However, whether one agrees with the speculations in the previous paragraph or not, drafting history does not answer the question about what all the parties to the treaty intended. Moreover the whole point of drafting history is to agree a text. It is that end point – the text – that is agreed by all. Whatever went before is not agreed by all.

  14. Dapo Akande

    Dov,

    Many thanks for your point about whether the VCLT applies to the ICC Statute at all and thanks also for directing readers to your post at Spreading the Jam. As the comments to your post have noted, I do agree with you to a point, but only to a point. I would not say that the VCLT does not apply at all to the ICC Statute but I do think that despite the fact that the Rome Statute is a treaty, the VCLT rules on treaty interpretation does not and should not apply in their entirety to the ICC Statute. This is because the ICC Statute is an instrument of criminal law. The rule that one starts from the text should still apply however, when it comes to clarifying ambiguity I have argued elsewhere that we should not automatically refer to drafting history in the case of a criminal law instrument. There are other rules that also apply. I make this point in my essay on “The Sources of International Criminal Law” in the The Oxford Companion to International Criminal Justice. Let me quote what I said there:

    “the principle in dubio pro reo (or favour rei) requires that in the interpretation of criminal law instruments any doubt should benefit the accused. This principle has been referred to in ICTY and ICTR cases, and is explicitly provided for in Article 22(2) of the ICC Statute, which provides that:
    “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”
    In strict terms, the application of the principle in dubio pro reo should modify the application of the Vienna Convention methods of interpretation. This is because one of the limited reasons justifying reference to the preparatory work of a treaty is where the interpretation reached under Article 31 “leaves the meaning ambiguous or obscure.” Once a decision is made that there is ambiguity, Article 22(2) of the ICC Statute requires that the meaning most favourable to the accused ought to be adopted. The test of ambiguity required by the ad hoc tribunal has been a rather low one in that the principle of favouring the accused is said to apply “where there is a plausible difference of interpretation or application.” Thus, where there is such a plausible difference of meaning, the Court ought not to proceed to attempt to use the preparatory work to resolve that ambiguity in a manner unfavourable to the accused. However, this does not mean that all reference to the preparatory work is excluded when interpreting the Statute. Such reference may be used to confirm a meaning already reached. Also, the presence of ambiguity may be revealed only by reference to the preparatory work since “the clearness or ambiguity of a provision [is] a relative matter; sometimes one [has] to refer [to] the preparatory work or look at the circumstances surrounding the conclusion of the treaty in order to determine whether the text was really clear and whether the seeming clarity was not simply a deceptive appearance.” In such circumstances, the accused ought not to be precluded from relying on the preparatory work.” [pp. 44-45]

  15. Dapo,

    I agreed with the points you made in the Oxford Companion. While I think your proposals are the more pragmatic solution (nobody at the ICC is going to say that the VCLT doesn’t apply to the Rome Statute), I think that coherence does require the technical exclusion of the VCLT.

    As I said in my post, this does not solve every interpretation problem, but at least it puts the accused back where he belongs, at the centre of considerations.

    I also think you, as well as Joost in his exchange with Kevin, rely too heavily on this “ordinary meaning of the term”. It is either not genuine or naive for a number of reasons. The meaning of a word is always about context, which is exactly what article 31(1) says. Looking for the “clear meaning” in the dictionary is a pointless exercise for me. Laws are replete with words that are used in the legal field with different meanings than in the dictionary. If things were as easy as opening a dictionary, we’d all be out of a job!

    Of course, I agree with your response to Kevin that the “intent” of the parties is most of the time just as vague, which is why I don’t have a strong attachment to that either.

  16. Joost

    Dov, bruva, I agree that ordinary meaning must be determined in light of context and purpose. But it is still ordinary meaning, isn’t it? The point is that the meaning of words, in this or other permissible ways under the VCLT, is NOT ‘intention of the parties’. As my man Kev admitted, he would have to rewrite the VCLT for him to be right, as long as he doesn’t argue as you do that the VCLT does not apply.

  17. My thanks to Dapo for his thoughtful response. I agree that in the absence of a clear collective intention on the part of the drafters of a specific provision in a treaty, it makes sense to rely on the ordinary meaning of that provision. I also agree that it can be extremely difficult, if not impossible, to reliably identify the collective intention behind treaty provisions. But I think it is just as untenable to argue that we can never identify the collective intention behind a particular treaty provision as it is to argue that we always can. Indeed, the drafters of the VCLT obviously assumed that collective intentions are sometimes knowable, as indicated by Art. 31(4)’s requirement that “[a] special meaning shall be given to a term if it is established that the parties so intended.” If the intent to give a special meaning to a term is radically unknowable, Art. 31(4)’s inclusion in the VCLT makes little sense.

    Perhaps Art. 31(4) addresses my concern about the VCLT’s emphasis on “ordinary meaning.” Perhaps judges scrupulously avoid simply reaching for their OED when it’s clear that the drafters were giving a special meaning to a particular term. But I’m skeptical. After all, a careful scholar like Dapo did not even mention Art. 31(4) in his analysis (in a blog post, to be sure!) of the meaning of “poison” in Art. 8 of the Rome Statute. Moreover, I would argue that Art. 31(4) of the VCLT does not go far enough — if judges must (“shall”) take special meanings of terms into account, why not special meanings of sentences? Of provisions? Of whole section of treaties? If intended meaning can trump ordinary meaning, as Art. 31(4) accepts, why should that be limited solely to individual terms?

    My position on treaty interpretation, it is worth noting, is anything but radical. I’m not a comparative legislation scholar, but I think it is fair to say that most domestic common-law systems have long since abandoned the idea that the ordinary meaning of a provision in a statute should be preferred to the meaning that is consistent with the legislative intent behind that provision. (I won’t hazard a guess about civil-law systems.) In Australia, for example, courts used to follow the “literal approach” to statutory interpretation, which allowed recourse to intent only when an attempt to apply ordinary meaning produced an ambiguity, absurdity, or inconsistency. Now courts follow the “purposive approach,” which instructs courts to adopt whatever interpretation of a statute is most consistent with Parliament’s rationale for adopting it. The parallel to the VCLT is both obvious and very much not accidental — both the VCLT and Australia’s literal approach are creatures of an era in which interpretation was still viewed as largely mechanical and objective. Domestic systems have recognized the folly of that approach; isn’t it about time international law recognized it, as well?

  18. Heiko Recktenwald

    Forgive me if this is completely stupid, but I have a problem with this last sentence:

    “However, one could imply this restriction from the fact that Art 121(5) seeks to provide a jurisdiction based on State consent, whereas SC referrals are not based on State consent.”

    Whether the ICC has jurisdiction at all and what law/crimes it can apply are not the same. This reminds me to F.A.Mann who used to say, sorry, that American lawyers cannot distinguish this (if I remember him right). And I have a strong feeling that the CWC is special insofar. It would be absurd IMHO to say that the CWC is the most relevant body of law insofar and on the other hand that the use of chemical weapons is a crime anyway.

  19. Jordan

    please read my click-on regarding Realist recognitions with respect to “meaning” (and expectation and consent) which, by the way, can evolve — something not addressed as such above. I recall an interesting title to an article (I think by one who decried that fact that “meaning” can be dynamic and may never rest on real, total “consent,” even among the drafters) — your treaty or our interpretation of it. This title is quite interesting from a policy-oriented perspective (as opposed to a rigid state-oreinted positivist perspective), since (like the meaning of a private contract) meaning is ultimately controlled by the community, and over time. The “our” or, implicit “we,” is the community (which, by the way, is not made up merely of states). Consider the meaning of a bilateral treaty (or private two-party contract under domestic law). The “ordinary meaning” criterion emphasized in the Vienna Convention (which, by the way, is expected to reflect customary international law) provides a potential community override or limiting aspect which can be policy-serving (perhaps contrary to rigid state oriented positivists who pretend that the world rests necessarily on state “consent” and aver that this is preferable).

  20. Aldo Zammit Borda

    Dapo,

    I recognise that the discussion on this post has moved on to the interesting discussion on statutory interpretation and whether the ordinary meaning of a treaty text should trump the intention of the parties (while various interpretative techniques have been posited, I agree that a textual approach should take precedence, but may be informed by a consideration of the context, including the intentions of specific parties and a consideration of drafting history).

    However, at the risk of being out of synch with the discussion, I wish to make some comments on another issue raised by this post: the alleged use of chemical weapons in Syria

    I agree that if the UN Security Council were to refer the situation to the ICC, it would have the power to include crimes within the Kampala Amendment.

    It is understood that the three-part definition of chemical weapons in the Chemical Weapons Convention (CWC) is broader than that in the Rome Statute. The definition in the CWC aims to cover not only toxic chemicals and their precursors, except when used for purposes permitted by the CWC, but also munitions or devices specifically designed to inflict harm or cause death through the release of toxic chemicals and equipment specifically designed for use directly in connection with the employment of munitions and devices.

    However, the critical difference here is that, while the CWC prohibits the development, production, acquisition, stockpiling, use, etc. of chemical weapons in both war and peace time, the Rome Statute criminalizes the employment (or use) of “poison or poisoned weapons” and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” in armed conflict, as a serious violation of IHL.

    I think, if toxic chemicals or other chemical weapons were used in an armed conflict, it would be difficult to argue that these would not be captured within the meaning of “poison or poisoned weapons” and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices.” After all, as you note in the post, “[t]he words ’poisonous’ and ‘toxic” are largely synonymous.”

    The news and images emerging from Syria are horrific and one has to hope that, if the allegations are true, those responsible will eventually be brought to justice.

    It is because these allegations are so horrific that, I think, this situation should make us reflect on the broader context. The broader context is that all weapons of mass destruction (not just chemical weapons) cause indiscriminate and untold harm and suffering and, not only should they be prohibited, their use should be criminalized.

    In your post, you refer to an article by Amal Alamuddin and Philippa Webb who note that, in the drafting of the Rome Statute, biological weapons appear to have been omitted. In ‘Prosecuting International Crimes’, Cryer refers to this omission as “one of the Rome Statute’s most significant omissions…[which] flies in the face of the prohibition, which was included in the 1925 Gas Protocol…) (at 280).

    While it is true that, historically, chemical weapons have been used with horrific consequences on the battlefield. However, it appears tragically selective to criminalize the employment of poison weapons but not the employment of bacteriological weapons.

    More controversially, it appears selective not to criminalize the employment of nuclear weapons. I am aware of the ICJ Advisory Opinion on this and the vested interests of Nuclear Weapons Possessor States. However, as the lessons of Hiroshima and Nagasaki show, the impact of the employment of nuclear weapons may be just as indiscriminate, just as horrific and just as inhumane.

  21. Heiko Recktenwald

    “However, it appears tragically selective to criminalize the employment of poison weapons but not the employment of bacteriological weapons” and so on. I agree completely. At least the “horror” argument is not valid.

    I fear the “realist” argument is nothing but the view that law does not matter. This is what F.A.Mann called “Bleibese Juristen”. But PIL after WWII started with “instant custom” and new law must also begin one day. But to be more than power it must be valid in all cases. Lets wait and see what it is that may happen.

  22. Heiko Recktenwald

    “Bleibense Juristen und huetense sich vor amerikanischen Banken” three times each day to quote him correctly.

  23. […] passed by the 2010 Kamapala Review Conference, but it does not become binding on signatories until they have ratified the amendment; as of 2013 only 8 states have. However, the Security Council’s referral role under Article 12 was expressly designed to widen […]

  24. Dear Dapo,

    Interesting read and, essentially, we agree that this could be referred to the UNSC (although one or two of the P5 won’t let it happen). I’d encourage you to also take a look at some work VERTIC has done on this topic:

    1) Chemical and biological weapons use in the Rome Statute: a case for change, VERTIC Brief No. 14 (Feb 2011): http://www.vertic.org/media/assets/Publications/VB%2014.pdf

    2) VERTIC Blog: Syria: international law and the use of chemical weapons (Aug 2012):
    http://www.vertic.org/pages/posts/syria-international-law-and-the-use-of-chemical-weapons-345.php?g=18

    3) VERTIC Blog: Syria revisited – international law and the use of biological weapons (Oct 2012):
    http://www.vertic.org/pages/posts/syria-revisited—international-law-and-the-use-of-biological-weapons-381.php?g=18

  25. Heiko Recktenwald

    “The Responsibility to Protect (“R2P”) is an emerging philosophy”(at “full force of international law” in contrast to regular cases of conspiracy with “bad” guys as in the 80s)is nothing but another name for intervention (Talleyrant). Philosophies are not law. On the other hand Syria has been the birthplace of “Humanitarian Interventions” since the 19th century, see Rougier on Mount Lebanon. That topic comes and goes in waves, a lot was written around 1930. “(D)esigned to widen” is a reference to the future. And it also shows the limits of any future crime of aggression. Maybe it is at best a change in language.

  26. Heiko Recktenwald

    At Vertic: “And as with chemical weapons, the ICRC concluded in 2005 that customary international humanitarian law includes a ban on the use of biological weapons in internal as well as in international conflicts.” One should look up what Bellinger had to say on this. His comment is the sort of legal thinking I like. The destinction between legal novels and legal reality..