Chapter

The criminalization of the use of biological and chemical weapons

Annita Larissa Sciacovelli

War crimes and the conduct of hostilities : challenges to adjudication and investigation

Cheltenham ; Northampton : E. Elgar, 2013

p. 211-224

English

This article examines the criminalization of the employment of biological weapons (BW) and chemical weapons (CW). The author notes that while the prohibition of BW and CW reflects customary international law, the development of these weapons is outlawed by international conventions and national legislation. With respect to crimes under international law, she argues that domestic courts may be competent to prosecute both on the basis of their domestic jurisdiction and under the principle of universal jurisdiction. States Parties may also exercise their extraterritorial jurisdiction over crimes committed by foreigners. While the lack of specific reference to CW and BW in the International Criminal Court’s (ICC) statute creates ambiguity, the author argues that the ICC’s jurisdiction over the criminal use of “poison or poisoned weapons” and “prohibited gases” could be interpreted to cover BW and CW. In terms of individual criminal responsibility for the use – and complicity with use – of CW and BW, the author explores jurisprudence from South Africa, Iraq, the Netherlands, and the European Court of Human Rights. She concludes that individuals deploying BW and CW may be held accountable for war crimes, but the same cannot be said for ancillary activities, unless they incur accomplice liability for the production and/or supply of these weapons. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• War crimes and the conduct of hostilities : challenges to adjudication and investigation / ed. by Fausto Pocar, Marco Pedrazzi, Micaela Frulli