Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare

Article 8(2)(b) of the Rome Statute treats as a war crime in international armed conflict the use of poison or poisoned weapons, of asphyxiating, poisonous or other gases, and of expanding bullets. Early drafts of the Statute included the use of these forbidden weapons in non-international as well as in international armed conflict. They also included as crimes the use of chemical, biological, and nuclear weapons (weapons of mass destruction). Proposals are circulating about revisiting these and other weapons issues at the Review Conference to be held in 2010, or in later reviews. This article examines the history of the negotiations culminating in Rome. It then turns to possibilities for building on the Rome provisions both by expanding the prohibitions to non-international conflict and by adding to the list of prohibited weapons. As well as reconsidering weapons of mass destruction, the author suggests that attention should be given to such items as nondetectable fragments, blinding laser weapons, antipersonnel land mines, and cluster munitions. Ambiguities in the Rome Statute's amendment provisions that affect whether such additions can be made applicable to all parties to the Statute, or only to those who agree specifically to them, are also addressed.