Prohibited weapons and the means and methods of warfare in the Rome Statute
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South African yearbook of international law, Vol. 35, 2010, p. 97-110
Included in the Rome Statute's definition of war crimes are acts committed in international armed conflicts and which involve the use of poison or poisoned weapons; asphyxiating, poisonous or other gases; bullets which expand or easily flatten in the human body; or weapons, projectiles and material and methods of warfare which cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. The applicability of this last category is made subject to two conditions: firstly, the weapons etcetera, must be the subject of a 'comprehensive prohibition' and, secondly, must be included in an annex to the Statute which must be effected by an amendment of the Statute in accordance with articles 121 and 123 thereof. These provisions do not create new rules of international humanitarian law. Instead, for purposes of the Rome Statute, their function is to criminalise prohibitions that already exist under either conventional or customary international law. The net result of the above provisions is that with regard to the means and methods of warfare, a set of traditional and contemporary norms now exists which have consequences not only for international law on state responsibility in case of non-compliance, but also for individual criminal responsibility where a war crime is shown to have been committed.