Table of contents:
Element:
A. Evidentiary comment:
The prohibition of poison has not been interpreted so widely as to include 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)."
This crime overlaps with the crime of employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. (See article 8(2)(b)(xviii))This connection was noted by the Tokyo District Court in the Shimoda case and the above ICJ advisory opinion. (Knut Dörmann, "Elements of War Crimes under the Rome Statute", Cambridge 2002, p. 282)
