VERTIC releases Brief No. 14 on the Rome Statute

Posted by Scott Spence (scott.spence) on Feb 08 2011
VERTIC Blog >> National Implementation Measures

Kara Allen, a former VERTIC intern and recent Virginia Law graduate writes on the matter of amending the Rome Statute to explicitly include chemical and biological weapons use as war crimes in international and domestic armed conflict. With Scott Spence and Rocio Escauriaza Leal, Kara explores the purpose of the Rome Statute, the negotiation history behind the vaguer language regarding chemical and biological weapons in the current treaty, the failure of a proposed amendment to be considered at last summer's Review Conference, which would have more explicitly included chemical and biological weapons use as war crimes, and ways forward in the coming years.

Some have privately expressed concern that our Brief might somehow threaten the Rome Statute and undermine the existing language, which VERTIC believes is vague and in need of greater clarity. In particular, some believe that our interpretation of 'poison' is too strict: that historically this term includes chemical and biological weapons. As Kara clearly points out in the Brief, however, there has been a clear evolution in the use of the terms 'poison', 'poisonous gases', 'chemical weapon' and 'biological weapon' over the years. Indeed, the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare distinguishes between 'asphyxiating, poisonous or other gases, and of all analogous liquids  materials or devices' and 'bacteriological methods of warfare'. So nearly a century ago, a demarcation took place between the earlier notion of poisons and poisonous gases and bacteriological weapons. 

Moreover, the commonly known Biological Weapons Convention is more accurately known as the Biological and Toxin Weapons Convention. Toxins are poisons produced by living creatures, so it seems obvious to us that a toxin (or poison) weapon is different from a biological (or pathogenic) weapon. And it is this distinction, we believe, that has been lost in the Rome Statute for reasons actually unrelated to chemical and biological weapons, and more tied into the nuclear weapons debate.

As Kara points out, this ambiguity is not ideal in a statute which is intended to guide the International Criminal Court's jurisdiction and it will not serve anyone well if a biological or chemical weapon is actually used in an international or domestic armed conflict (not beyond the realm of possibility) and the prosecutors and defense lawyers get mired in interpretations of the existing terms in the Rome Statute. Indeed, it is unclear whether biological weapons are covered at all as we discuss in the article.

VERTIC calls upon the States Parties to the Rome Statute to again take up the proposed Belgian amendment to the treaty in advance of the next Review Conference so that they will be ready then to firmly and clearly proscribe chemical and biological weapons use in armed conflict as war crimes.  

Last changed: Feb 08 2011 at 10:11 AM