The Weapons Provisions of the Rome Statute of the International Criminal Court

Abstract

The use of weapons at international law is governed by the law of armed conflict. These laws with regard to weapons are based on two key principles: not causing superfluous injury or unnecessary suffering; and being able to discriminate between military and civilian targets. The law of armed conflict formed the basis of the weapons provisions of the Rome Statute of the International Criminal Court 1998. The Rome Statute sought to make individuals responsible to an independent international court for the “most serious crimes of international concern”. However the weapons provisions only included weapons that are out of date– poison, asphyxiating and poisonous gases, and expanding and flattening bullets. Nuclear weapons were left out because they are not yet considered fully prohibited at international law and to keep the nuclear weapon States at the negotiating table. Biological and chemical weapons were excluded as fallout from the decision not to include nuclear weapons despite their prohibition long since being considered part of customary international law. The prohibition on anti-personnel landmines was considered too new to be incorporated into the Rome Statute. As a compromise for not including these weapons, the drafters also included the option of adding weapons at a later date to an annex. However, considering the procedural requirements for adding weapons to the annex, it seems unlikely that this provision will ever be used and is almost completely useless. These modern weapons may be covered by other non-weapon specific provisions but this method is not perfect. Although there have been attempts by Mexico and Belgium to amend the Rome Statute, the only successful amendment has seen the criminalisation of the outdated weapons be extended to armed conflicts not of an international character – something missing from the original Statute. This is likely to remain the status quo unless drastic changes occur such as further proliferation of these modern weapons.