Table of contents:
3.1. The perpetrator employed a substance; OR
P.1. Evidence that the perpetrator contaminated water sources.
P.1.1. Evidence of poisoning of wells.
P.1.2. Evidence that water in pumps was poisoned.
P.1.3. Evidence that water in reservoirs was poisoned.
P.1.4. Evidence that water in lakes was poisoned.
P.1.5. Evidence that water in rivers was poisoned.
P.1.6. Not exculpatory: Evidence of notice regarding the poisoning of drinking water source.
P.2. Evidence of toxic contamination of foodstuffs.
P.3. Not sufficient: Evidence of poisonous secondary effects of otherwise permissible munitions.
3.2. The perpetrator employed a weapon that releases a substance as a result of its employment.
Element:
General evidentiary comment:
Article 3(a) of the ICTY Statute deals with employment of poisonous weapons or other weapons calculated to cause unnecessary suffering. However, "no charges have been brought in relation to this offence at either Tribunal, although there were allegations during the war in Bosnia that such weapons might have been used. The only pronouncement relevant to this crime consists in an obiter dictum of the Appeals Chamber in the Tadic case where it said that the use of such weapons would be regarded as a violation of international law that would entail individual criminal responsibility, whether it took place in an internal or international armed conflict." (See Tadić Jurisdiction decision, paras. 119-124) (Guena?l Mettraux, "International Crimes and the Ad Hoc Tribunals, OUP 2005, p. 91, footnotes omitted.)
Clarification is required on whether chemical and biological weapons are covered by the prohibition of poison in the Rome Statute or not. One commentator suggests that "this outcome is regrettable from the standpoint of international legal policy, but unavoidable; however the use of biological and chemical weapons of mass destruction is criminal under customary international law." (Gerhard Werle, "Principles of Customary International Law", T.M.C Asser Press, 2005, margin No. 1106) It is to be hoped that the same would be covered under article 8(2)(b)(xx) eventually.
3.1. The perpetrator employed a substance; OR
A. Legal source/authority and evidence:
Article 23(a) Hague Regulations:
"Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden:
(a) To employ poison or poisoned weapons;"
Michael Bothe et al., "New Rules for Victims of Armed Conflict", Martinus Nijhoff Publishers 1982, pp. 192-194:
"Article 35 (Additional Protocol I) - Basic rules
1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
[ ]
The statement of the abstract principle requires some explanation of the layers of limitations applicable to the choice of means and methods of warfare. The first layer of limitations consists of the specific prohibitions and restrictions expressed in the "rules of international law applicable in armed conflict". These consist of such rules as those prohibiting the use of poison or poisoned weapons."
P.1. Evidence that the perpetrator contaminated water sources.
P.1.1. Evidence of poisoning of wells.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The British and Canadian military manuals state with regard to the prohibition of poison:
Water in wells, pumps, pipes, reservoirs, lakes, rivers and the like, from which the enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is not made lawful by posting up a notice informing the enemy that the water has been thus polluted.8"
"8. The Law of War on Land being Part III of the Manual of Military Law (HMSO, 1958), p.42. See also Canadian Military Manual, Office of the Judge Advocate, The Law of Armed Conflict at the Operational and Tactical Level, in www.dnd.ca/jag/operational_pubs_e.html@top, p.5-2."
[Evidentiary comment:]
P.1.2. Evidence that water in pumps was poisoned.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The British and Canadian military manuals state with regard to the prohibition of poison:
Water in wells, pumps, pipes, reservoirs, lakes, rivers and the like, from which the enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is not made lawful by posting up a notice informing the enemy that the water has been thus polluted.8"
"8. The Law of War on Land being Part III of the Manual of Military Law (HMSO, 1958), p.42. See also Canadian Military Manual, Office of the Judge Advocate, The Law of Armed Conflict at the Operational and Tactical Level, in www.dnd.ca/jag/operational_pubs_e.html@top, p.5-2."
[Evidentiary comment:]
P.1.3. Evidence that water in reservoirs was poisoned.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The British and Canadian military manuals state with regard to the prohibition of poison:
Water in wells, pumps, pipes, reservoirs, lakes, rivers and the like, from which the enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is not made lawful by posting up a notice informing the enemy that the water has been thus polluted.8"
"8. The Law of War on Land being Part III of the Manual of Military Law (HMSO, 1958), p.42. See also Canadian Military Manual, Office of the Judge Advocate, The Law of Armed Conflict at the Operational and Tactical Level, in www.dnd.ca/jag/operational_pubs_e.html@top, p.5-2."
[Evidentiary comment:]
P.1.4. Evidence that water in lakes was poisoned.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The British and Canadian military manuals state with regard to the prohibition of poison:
Water in wells, pumps, pipes, reservoirs, lakes, rivers and the like, from which the enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is not made lawful by posting up a notice informing the enemy that the water has been thus polluted.8"
"8. The Law of War on Land being Part III of the Manual of Military Law (HMSO, 1958), p.42. See also Canadian Military Manual, Office of the Judge Advocate, The Law of Armed Conflict at the Operational and Tactical Level, in www.dnd.ca/jag/operational_pubs_e.html@top, p.5-2."
[Evidentiary comment:]
P.1.5. Evidence that water in rivers was poisoned.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The British and Canadian military manuals state with regard to the prohibition of poison:
Water in wells, pumps, pipes, reservoirs, lakes, rivers and the like, from which the enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is not made lawful by posting up a notice informing the enemy that the water has been thus polluted.8"
"8. The Law of War on Land being Part III of the Manual of Military Law (HMSO, 1958), p.42. See also Canadian Military Manual, Office of the Judge Advocate, The Law of Armed Conflict at the Operational and Tactical Level, in www.dnd.ca/jag/operational_pubs_e.html@top, p.5-2."
[Evidentiary comment:]
P.1.6. Not exculpatory: Evidence of notice regarding the poisoning of drinking water source.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The British and Canadian military manuals state with regard to the prohibition of poison:
Water in wells, pumps, pipes, reservoirs, lakes, rivers and the like, from which the enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is not made lawful by posting up a notice informing the enemy that the water has been thus polluted.8"
"8. The Law of War on Land being Part III of the Manual of Military Law (HMSO, 1958), p.42. See also Canadian Military Manual, Office of the Judge Advocate, The Law of Armed Conflict at the Operational and Tactical Level, in www.dnd.ca/jag/operational_pubs_e.html@top, p.5-2."
[Evidentiary comment:]
P.2. Evidence of toxic contamination of foodstuffs.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The German military manual provides in this regard:
[ ]
This prohibition also applies to toxic contamination of water supply installations and foodstuffs [Art. 54, (2) AP I; Art. 14 AP II]"
P.3. Not sufficient: Evidence of poisonous secondary effects of otherwise permissible munitions.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 283:
"The German military manual provides in this regard:
[ ]
This prohibition does not apply to unintentional and insignificant poisonous secondary effects of otherwise permissible munitions."
3.2. The perpetrator employed a weapon that releases a substance as a result of its employment.
A. Legal source/authority and evidence:
Article 23(a) Hague Regulations:
"Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden:
(a) To employ poison or poisoned weapons;"
