Article

Chemical weapons and the International Criminal Court

by Andreas Zimmermann and Meltem Sener

• American journal of international law, Vol. 108, no. 3, July 2014, p. 436-448

English

When the contracting parties to the Rome Statute establishing the International Criminal Court met in Kampala in 2010 to discuss possible amendments to the statute, the main focus was, and has thereafter remained, on the crime of aggression. In addition to amending the statute to include the crime of aggression, however, the contracting parties amended Article 8 of the statute to include a broader range of war crimes in noninternational armed conflicts over which the ICC can have jurisdiction – inter alia, by including the use of chemical weapons. The use of chemical weapons by Syrian government forces in 2013 (and perhaps subsequently) has acutely raised questions concerning the extent of the ICC's treaty-based jurisdiction, both under the unamended text of the Rome Statute or in situations where the amendment to Article 8 applies. These events have also provoked consideration concerning the Security Council's legal powers to extend the ICC's jurisdiction to certain crimes involving chemical weapons that would otherwise be beyond its subject matter jurisdiction. These questions are considered in this Note. It considers first, the basis of the now standard view that the use of chemical weapons constitutes a war crime under customary law in both international and noninternational armed conflicts; second, whether despite the intentional omission of references to chemical weapons in the original Rome Statute, the ICC's treaty-based jurisdiction extends in noninternational armed conflicts to the use of chemical weapons by states for which the Kampala amendment to Article 8 is not in force; and third, whether the Security Council may confer such ICC jurisdiction by way of a Security Council referral.

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• American journal of international law
• American journal of international law [Vol. 108, no. 3, July 2014]