John Burroughs

Executive Director

Lawyers Committee on Nuclear Policy

July 1998; revised April 1999

On July 17, 1998, the Statute for the International Criminal Court (ICC) was adopted in Rome. On the one hand, no clear specific advances were made with respect to nuclear and other weapons of mass destruction (WMD) in the Statute. On the other hand, the issue of nuclear weapons was constantly before the negotiating conference, and the Statute identifies WMD as a subject for further negotiations at a review conference. Further, the establishment of the ICC (if and when 60 states ratify the Statute) would generally contribute to the marginalization of nuclear weapons, because their use is fundamentally incompatible with general provisions of the Statute as well as the kind of international legal order envisioned by the Statute.

I attended all five weeks of the negotiations on behalf of the International Association of Lawyers Against Nuclear Arms and participated in the NGO Peace Caucus, which focussed on WMD issues. The Peace Caucus was a small but intrepid band in a sea of NGOs, including at various times members of Abolition 2000: A Global Network to Eliminate Nuclear Weapons like Fergus Watt, Canadian Abolition Network and World Federalist Movement, Barbara Bedont, Women's International League for Peace and Freedom, Canada, Rob Green, World Court Project-UK, Alyn Ware, Lawyers' Committee on Nuclear Policy, New York, Jackie Cabasso, Western States Legal Foundation, California, and some welcome new participants including Cristina Gates, Institute for Women & Children, Philippines, Chiquette Tanizaki, PPF Global Alliance, Japan and Philippines, J. Vaidyanathan, United Nations Association, India, and Miriam Mendelson, USA. The Peace Caucus had a very difficult mission, basically because the objective of clearly criminalizing the use of nuclear weapons was at odds with the aim of obtaining support or at least tolerance of the Statute from the nuclear weapon states. But we persevered, distributing several position papers and speaking with numerous delegates.

For those interested in more detail and evaluation, what follows is a report on how the ICC Statute treats weapons of mass destruction, plus comments on aggression and a few other major issues. At the end, the role of NGOs is briefly described; I recommend reading this because there are possible lessons for Abolition 2000 organizing which need further exploration. A summary of basic points re WMD appears near the beginning. To access the entire Statute as adopted, see www.un.org/icc; for more information see website of NGO Coalition for ICC, www.igc.org/icc.

The first prohibited weapons option in the draft Statute coming into the negotiations that commenced June 15, 1998 explicitly named chemical and biological weapons as weapons whose use would constitute a war crime, but did not list nuclear weapons. As adopted July 17, 1998, the express identification of chemical and biological weapons was dropped, and a provision re adding weapons by amendment was added. The prohibited weapons provisions now read as follows:

War Crimes (International Armed Conflict), Art. 8(2)(b)

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous

liquids, materials, or devices;

(xix) Employing bullets which expand or flatten easily in the human body,

such as bullets with a hard envelope which does not entirely cover the core

or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare

which are of a nature to cause superfluous injury or unnecessary suffering

or which are inherently indiscriminate in violation of the international law

of armed conflict, provided that such weapons are the subject of a

comprehensive prohibition and are included in an annex to this Statute, by

an amendment in accordance with the relevant provisions set forth in

articles 121 and 123 [review and amendment];

Some summary points re the Statute and WMD:

* the "asphyxiating, poisonous or other gases" provision covers chemical weapons and probably biological weapons

* nuclear weapons are covered by other general provisions (not quoted above) re war crimes and crimes against humanity

* the identification of the review and amendment process as a means to add weapons in the future, and the statement of criteria for so doing, is symbolically useful - it effectively condemns WMD and points towards their explicit listing at a later point; however, the amendment process is difficult

* the "inherently indiscriminate" language was successfully inserted over the resistance of nuclear weapon states, and should henceforth be used often to describe nuclear weapons

Additional detailed comments re the negotiations and the Statute follow:

1. A majority of states addressing the issue supported options in the draft Statute, in the prohibited weapons section, that either expressly identified nuclear weapons or contained a general provision regarding weapons that cause unnecessary suffering or indiscriminate damage that would implicitly cover nuclear weapons. The Non-Aligned Movement of more than 100 states, in its Cartagena meeting a month before, had made inclusion of use of nuclear weapons and of aggression as crimes key objectives. Of course, the nuclear weapon states absolutely refused a Statute that would clearly criminalize use of nuclear weapons.

Some 60 European, African, and some Latin American and Asian states, also Canada, together formed an alliance known as the "like-minded states" which was the engine for the process of creating the Statute. Since in the interest of having a workable institution the like-minded states wanted the nuclear weapon states (also the P-5) to ratify the Statute or at least accept and tolerate it even if not parties, there was an impasse regarding nuclear weapons. It was resolved in the form you see above: reportedly at the instance of some Arab states, who were especially offended by the omission of nuclear weapons while chemical and biological weapons were criminalized, the express reference to chemical and biological weapons was deleted; WMD are to be added in the future pursuant to the amendment process.

The deliberative process was not very impressive on WMD, aggression, jurisdiction, and some other major issues; for weeks there were repetitive barren restatements of national positions; Chair's papers with widely different options started circulating a week and a half before the end; and then in the last three days a take it or leave it package was put together by the Chair consulting with various groups and states, out of public view. Thus the final provisions re WMD (deleting chemical and biological), jurisdiction, and aggression were seen for the first time in a public document only on the last day.

On the final evening, July 17, India made what were portrayed as negotiation wrecking proposals to amend the final proposal by 1) adding back in nuclear, chemical, and biological, and 2) deleting all references to a Security Council role. Based on the argument that the package was a delicate compromise which had to be treated as a whole, the amendments were rejected on Norway's "no action" motion requiring only a simple majority: 114 yes (yes to no action, defeating proposal), no 16 (including Iran, Singapore, Indonesia, Tanzania), and abstain 20. Malawi on behalf of a number of African states including South Africa spoke in support of "no action", stating that while Malawi appreciated the rationale for the Indian proposal, it would not help to achieve the overall result. Chile also spoke for "no action". (As mentioned below (#8), that evening the US also made what were seen as negotiation wrecking amendments that were similarly rejected.)

In statements following adoption, a number of states objected to the omission of nuclear weapons, sometimes to the omission of other WMD: India, Mexico, Cuba, Sudan on behalf of the Arab group, Egypt, Bangladesh, Benin. Mexico stated it would pursue the matter of nuclear weapons in the review conference. Singapore objected to the dropping of chemical and biological weapons without opportunity for debate.

2. Perhaps unbeknownst to some states who wanted chemical and biological weapons deleted, antiquated language from the 1925 Geneva Gas Protocol, "Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials, or devices" is well understood, certainly in Western international law circles, to proscribe the use of chemical weapons. Further, in the context of the Gas Protocol, the language also proscribes the use of biological weapons, since the Protocol expressly extended the commitment to those weapons. Thus there is a good argument that, especially since a provision of the Statute (Article 21) calls for reference as appropriate to law other the Statute, the language also applies to biological weapons. Unfortunately, in its advisory opinion on nuclear weapons, the World Court squarely rejected the argument that this language applies to nuclear weapons.

3. The reference to adding weapons through review process is not as good as it sounds, because 7/8 of states are required to ratify amendments for them to enter into force, and, depending upon interpretation of the amendment provisions, an amendment adding a weapon may apply only to the states who do ratify it. Nonetheless, there will be an opportunity to raise WMD issues again at the review conference scheduled to be heard seven years after entry-into-force of the Statute (since entry-into-force requires ratification by 60 states and could take years, the conference could be say 10-15 years from now).

4. One small victory is that there is now a reference to weapons which are "inherently indiscriminate" in the provision re adding weapons in the future. This reflected the World Court opinion on nuclear weapons as well as Protocol I to the Geneva Conventions, and was strongly resisted by the nuclear weapon states. Henceforth "inherently indiscriminate" is a phrase which should often be used when talking about nuclear weapons.

5. Though nuclear weapons are not expressly identified in the prohibited weapons section, there are many other provisions under which their use would be criminal: prohibitions on deliberately attacking civilians and civilian objects; a prohibition on attacks which cause damage (including to the environment), death, and injury disproportionate to the anticipated military advantage; prohibitions on murder, extermination, and inhumane acts as crimes against humanity; prohibitions on willful killing; etc. Also, though there are no prohibited weapons provisions for internal armed conflict, crimes against humanity prohibitions and, to a lesser extent, certain general war crimes provisions would apply to use of WMD within a country (Hussein against Kurds, for example).

6. Aggression was put into the Statute as a crime to be defined later through amendment process! - thus subject to the difficulties with that process mentioned above. It appears that the nuclear weapons issue was used as one source of leverage by the NAM states to obtain this concession re aggression. The US and other major states effectively opposed its inclusion by insisting on a definition and a role for the Security Council that were unacceptable to other states. (Obviously, having a provision re aggression in the Statute is problematic for US in carrying out (non-U.N. approved) military operations around the world; however, it is only symbolically in at this point, since it still must be defined to be applied by the ICC.)

The treatment of aggression and of WMD shows that the larger issues regarding global order were simply deferred. The like-minded states were intent on obtaining a Statute bearing on genocide, crimes against humanity (large-scale and severe human rights violations whether committed in peacetime or wartime), and war crimes, not on dealing with difficult issues of global order. The context was well illustrated by India's strong opposition to the Statute. India accurately said that under the Statute, non-Statute members of the Security Council can refer matters to the ICC involving non-Statute members (see #7 below). Thus the Security Council, including P-5 members likely not to be parties at least in the near term - China and US, could refer a matter involving the second largest country in the world, India, to the ICC. India's insistence on including nuclear weapons probably reflected both principle and an effort to derail Statute which India and some other large "non-aligned" states opposed on other grounds as well, including but not limited to inequities relating to Security Council role as well as the fact that, in principle, the ICC's jurisdiction is not limited only to large-scale atrocities.

7. Cases involving genocide, crimes against humanity, war crimes, and (someday?) aggression are referred to the ICC by 1) the Security Council (thus institutionalizing the precedent of the ad hoc tribunals created by Security Council for Rwanda and former Yugoslavia), 2) states, or 3) the ICC prosecutor acting on his or her own authority under supervision of the Court based on reliable information essentially from any source. Jurisdiction in the latter two cases is exercised a) if a state is a party or consents and b) the state is either the state of nationality of the accused or the territorial state where crime was committed. A Security Council referral overcomes all jurisdictional obstacles.

The lead NGOs (including Human Rights Watch, Lawyers Committee for Human Rights, Amnesty International, World Federalist Movement, International Commission of Jurists, Women's Caucus, No Peace Without Justice) in the NGO Coalition for ICC are very upset with the fact that a state with custody of a suspect is a party to Statute does not suffice to confer jurisdiction, in fact has no bearing on jurisdiction. This would have been the most practical path leading to a prosecution other than a Security Council referral. Lead NGOs also harshly criticized the provision for opt-out as to war crimes for a period of seven years after a state becomes a party; however, in a longer-term perspective this doesn't seem terribly significant (obviously however this depends upon what happens during the seven years if a state exercises the opt-out!).

8. Among P-5 and other influential countries, Russia, UK, France, Germany, Japan, are supporting Statute. US is opposed, offering as its (should I say Pentagon's) main (and legally untenable) reason the fact that it makes possible prosecution of US nationals even though US is not a party if a crime is committed on territory of a state party to the Statute. US offered amendments which were voted down on no action motion, 113 to 17 with 25 abstentions. India has stated it will not sign. Based on procedural votes, Indonesia (fourth largest country in world) and Iran also may not sign; Mexico is undecided.

The Statute has wide support among the like-minded states mentioned above, African, some Latin American and Asian, European. The numbers for the vote on adoption were 120 in favor to 7 against (reportedly including Iraq, Israel, Libya, Qatar, Yemen, and US), with 21 abstentions. More than 80% of those voting voted for adoption, a large but not overwhelming margin, nowhere close to consensus. Obviously the path forward (including even entry-into-force) is not a smooth one given the opposition of some major states, but it remains to be seen whether, for example, the US will play a constructive role in the future despite its position at the close. The US was deeply involved in the negotiations, made positive contributions on issues like the applicability of humanitarian law to internal conflict, and certainly will want to influence future evolution of the ICC, e.g. re aggression and WMD.

9. The role of NGOs was fascinating and instructive and, like the Landmines Campaign, bears extended discussion as to its lessons for Abolition 2000. Just a few points now. According to the UN, 124 NGO groups were at the negotiations, but the number of groups there for at least part of the time was considerably higher, around 200, because some NGOs participated under umbrella groups. The Coalition I believe says it has more than 800 member groups worldwide. For most of the five weeks 100-150 persons were there I'd roughly estimate.

The Coalition worked *very* closely with the like-minded states in promoting and to some extent crafting positions. There also were very good connections to Canada, which effectively was leading the negotiations because the Chair, Philippe Kirsch, was on the Canadian delegation. One thing that impressed me especially was role of like-minded states in conjunction with NGOs. The like-minded states were not just taking rhetorical positions, as I fear we see happening in the Nuclear Non-Proliferation Treaty context by anti-nuclear states; in preparing for the conference and in the mostly off-the-record actual negotiations that took place, they were hard-driving, pragmatic, problem-solving, informed and expert, etc; and they were effectively supported by NGOs, for example in publicizing support of large number of states for key like-minded positions.

The Coalition did not expressly take specific positions, but there was agreement and advocacy as to broad principles (for example, inclusion of gender-related crimes, as horribly illustrated by mass rapes in Bosnia), and implicitly as well on some specific points. Press work and identification of and positioning re key issues largely was carried out by the lead NGOs, several of which made up Coalition steering committee; thus there was no thorough discussion, still less any explicit consensus decision-making, among all participating NGOs. Partly this was for practical reasons, because of the number of NGOs and onslaught of events (familiar to those of you have been at similar international processes); partly because it was deemed too difficult to get into controversial matters; partly because the kind of culture of consensus we have to some degree in Abolition 2000 was lacking - it was somewhat expert and lawyer driven.

A good illustration is that the Coalition, lead NGOs, and many (most?) other participants did not take a position regarding aggression! WMD was another avoided topic, largely because effort expressly to include nuclear weapons was viewed as a potential treaty wrecker, as indeed India appeared to be trying to use it at the end. However, if indeed it played a role in inclusion of aggression, the effort in the event served as important leverage; it also led to a good provision re adding weapons in the future and the inherently indiscriminate language.

The Coalition had a very extensive operation, with numerous staff members, an efficient document handling and distribution system, teams to monitor and report on negotiations, computers and copying, water! - it was *very* hot and humid in Rome, its own daily newspaper, e-mail reporting, etc. NGOs seemed significantly to affect negotiations, not only on various specific issues through lobbying, but also globally in terms of public presence demanding (politely) ICC, and through very hard work of gathering and analyzing information about country positions (so that documented statements like 80% of states support, say, applicability of ICC to internal conflicts could be made and publicized through daily newspaper). Also expert work done by lead NGOs and others in PrepComs certainly was influential.

10. In conclusion, I'd say the Statute and its early ratification and entry-into-force is well worth supporting, for many reasons, one from the abolition perspective being that WMD will be increasingly out of place if international legal order can be strengthened through establishment of ICC. Also, the negotiations revealed that there are fundamental global order issues, for example, regarding role of Security Council and aggression and nuclear weapons, that if not dealt with adequately could block or erode or wholly disrupt and reverse apparent progress made on other fronts, e.g. progress on ICC. Finally, Abolition 2000 should have forums and discussions to learn from the experience

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