Table of contents:
3. The perpetrator employed a gas or other analogous substance or device.
P.1. Evidence of the use of chemical weapons.
P.1.1. Evidence of the use of chemicals that can cause death.
P.1.2. Evidence of the use of chemicals that can cause permanent harm.
P.1.3. Evidence of the use of chemicals that can cause temporary incapacity to humans or animals.
P.2. Evidence of the use of riot control agents.
P.2.1. Evidence of the use of tear gas as a means of warfare.
Element:
3. The perpetrator employed a gas or other analogous substance or device.
General evidentiary comment:
A curious situation is evident in this crime. It was decided during the drafting of the Rome Statute to exclude nuclear, chemical and biological weapons. However, the wording of this crime is identical to the wording of the 1925 Geneva Protocol For The Prohibition Of The Use In War Of Asphyxiating, Poisonous Or Other Gases, And Of Bacteriological Methods Of Warfare. This Protocol has been understood to apply to a broad range of chemical weapons. One commentator cites as proof of this General Assembly Resolution 2603 A (XXIV) (16 Dec 1999), which states that "the Geneva Protocol embodies well-recognized rules of international law prohibiting the use in international armed conflicts of all biological and chemical methods of warfare, regardless of any technical developments" and declares as "contrary to the generally recognized rules of international law, as embodied in the 1925 Geneva Protocol, the use in international armed conflict of: (a) Any chemical agents of warfare- chemical substances, whether gaseous, liquid, or solid- which might be employed because of their direct toxic effects on man, animals or plants " (M. Cottier, in O. Triffterer, (ed.,) "Commentary on the Rome Statute" (1999), article 8, margin No. 183, footnote 310). The adopting of article 8(2)(xx) seems to contemplate the inclusion of further weapons at a future date.
A. Legal source/authority and evidence:
1925 Geneva Protocol for The Prohibition Of The Use In War Of Asphyxiating, Poisonous Or Other Gases, And Of Bacteriological Methods Of Warfare:
"The undersigned Plenipotentiaries, in the name of their respective governments:
Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilised world; and
Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and
To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations;
Declare:
That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration."
Article 23, Hague Regulations 1907:
"Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden
(a) To employ poison or poisoned weapons;
(b) To kill or wound treacherously individuals belonging to the hostile nation or army;
(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;
(d) To declare that no quarter will be given;
(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;"
Article 54, Additional Protocol I:
"Protection of objects indispensable to the survival of the civilian population
1. Starvation of civilians as a method of warfare is prohibited.
2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive."
Article 14, Additional Protocol II:
"Protection of objects indispensable to the survival of the civilian population
Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works."
P.1. Evidence of the use of chemical weapons.
A. Evidentiary comment:
Clarification is required on whether chemical and biological weapons are covered by the prohibition of poison in the Rome Statute or not. As explained earlier in this document, to include such weapons under this crime would be to ignore the drafting history of the Rome Statute. 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) Another commentator cites examples from military manuals of different countries that illustrate the prohibition against chemical weapons. (The same have been included herein with the above caveat that it is still unclear whether the use of such weapons is criminalised under the Rome Statute. Such weapons may be covered under article 8(2)(b)(xx) in the future.
Another question relates to the use of herbicides. One commentator, after an analysis of 1925 Geneva Protocol For The Prohibition Of The Use In War Of Asphyxiating, Poisonous Or Other Gases, And Of Bacteriological Methods Of Warfare and the Convention on the Prohibition of the Development, Stockpiling and Use of Chemical Weapons and on their Destruction 1993 states that the Convention expressly recognises the prohibition of the use of herbicides as a means of warfare. The commentator concludes that the present provision adopts the broader coverage of the Geneva Protocol; and thus makes the use of herbicides as a means of warfare a war crime. However, the commentator adds that the Elements of Crimes could be understood as suggesting a narrower interpretation that does not include herbicides. (See Antonio Cassese et al eds., "The Rome Statute of the International Criminal Court: A Commentary" OUP 2002, p. 407)
P.1.1. Evidence of the use of chemicals that can cause death.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute" Cambridge 2002, p. 290:
"The Canadian military manual states:
and later on:
10. Ibid., p. 5-3"
P.1.2. Evidence of the use of chemicals that can cause permanent harm.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute" Cambridge 2002, p. 290:
"The Canadian military manual states:
and later on:
10. Ibid., p. 5-3"
P.1.3. Evidence of the use of chemicals that can cause temporary incapacity to humans or animals.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute" Cambridge 2002, p. 290:
"The Canadian military manual states:
and later on:
10. Ibid., p. 5-3"
P.2. Evidence of the use of riot control agents.
P.2.1. Evidence of the use of tear gas as a means of warfare.
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute" Cambridge 2002, p. 290:
"The Canadian military manual states:
and later on:
10. Ibid., p. 5-3"
A. Legal source/authority and evidence:
Knut Dörmann, "Elements of War Crimes under the Rome Statute" Cambridge 2002, p. 290:
"The Canadian military manual states:
and later on:
10. Ibid., p. 5-3"
B. Evidentiary comment:
The prohibition of gases, liquids, material and devices under this crime has not been interpreted as including nuclear weapons. The International Court of Justice held in the Advisory Opinion on the legality of the threat or use of nuclear weapons:
"55. The Court will observe that the Regulations annexed to the Hague Convention IV do not define what is to be understood by "poison or poisoned weapons" and that different interpretations exist on the issue. Nor does the 1925 Protocol specify the meaning to be given to the term "analogous materials or devices". The terms have been understood, in the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to nuclear weapons.
56. In view of this, it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the above-mentioned provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol (see paragraph 54 above)."
With respect to other modern weapons, one commentator suggests that "the clear wording of this crime and the uncontroversial broad interpretation of the underlying Poison Gas Protocol of 1925 do not permit the exclusion of modern chemical weapons. [ ] Whether, on the other hand, modern biological weapons are covered under this crime is doubtful." (Gerhard Werle, "Principles of Interntional Criminal Law" T.M.C Asser Press, 2005, p. 372)
