Use of nuclear weapons as an international crime and the Rome Statute of the International Criminal Court
Annie Golden Bersagel
Nuclear weapons under international law
Cambridge : Cambridge University Press, 2014
At the November 2009 Assembly of States Parties to the Rome Statute of the International Criminal Court (the Rome Statute), the Government of Mexico submitted a proposal to ban the use or threat of use of nuclear weapons as a war crime under Article 8 of the Rome Statute. Although the proposal was unsuccessful, it highlights a recurring debate over the status of nuclear weapons under international humanitarian law (IHL). The Rome Statute limits the International Criminal Court (ICC)’s jurisdiction over weapons prohibited under conventional and customary international humanitarian law. This chapter analyses the two provisions of the Rome Statute taht address the Statute's relationship to customary international law: articles 10 and 21. While these provisions attempt to establish a dividing line between the Statute and custom, the distinction is not entirely clear, and is not consistently respected in practice. The chapter then assesses the impact of the Rome Statute's weapons provision on the status of nuclear weapons under international law.