The United States, now supported by other NATO States, has proposed that the soon-to-be-established International Criminal Court (ICC) include as war crimes the use of chemical weapons or poisonous gas, but not nuclear weapons, thus legitimizing the threat or use of nuclear weapons. This would replace draft language in the ICC Statute which would make the use of all weapons of mass destruction a crime.
Please act now to oppose the NATO proposal and ensure that the use of any weapon of mass destruction is considered a war crime and a crime against humanity (See Action below).
An international diplomatic conference is scheduled to be held in Rome in June 1998 to formally establish an International Criminal Court (ICC). The ICC will have the power to try individuals charged with the commission of serious international crimes including genocide, crimes against humanity and war crimes.
The ICC differs from the International Court of Justice (ICJ), which hears cases between countries but has no power to try individuals. And, unlike the ad hoc courts which were established at the end of World War II to try German and Japanese criminals and the recently established tribunals for Rwanda and the former Yugoslavia, the ICC will be permanent and not restricted to any one region or dispute.
The creation of an International Criminal Court was proposed at the United Nations more than 45 years ago, but it has only been since the tragedies of Bosnia and Rwanda that enough political pressure has accumulated to make this vision a reality.
A series of preparatory and intersessional meetings have been held over the past two years to draft the Statute of the ICC. Two more meetings are planned for December and March before a draft Statute is forwarded to the diplomatic conference.
The key issues for the drafters are trigger mechanisms (how a case is brought to the court), complementarity (the relationship between national courts and the ICC) and scope (which crimes will be covered).
There is a large body of international law which greatly restricts behavior permissable during wartime. The humanitarian law of warfare, codified in such international treaties as the Geneva and Hague Conventions, makes it illegal, among other things, to use weapons or tactics which :
* fail to discriminate between combatants and civilians
* cause unnecessary suffering
* use poisonous or analogous substances
* violate neutral states
* cause long-term and severe damage to the environment
The Nuremburg Principles, which were used to convict German War Criminals, affirm that individuals cannot escape responsibility for such actions even if they are condoned by their respective governments. The Rwanda and Yugoslavia Tribunals are using this law in the trials of individuals who committed, ordered or condoned atrocities in these countries. The ICC Draft Statute thus includes a section which would provide for the prosecution of individuals for war crimes.
Weapons of mass destruction
The U.S. has proposed that the use of biological and chemical, but not nuclear, weapons be included as a war crime in the ICC Statute. Syria has proposed that the use or threat of use of nuclear weapons also be included.
Aotearoa-New Zealand and Switzerland have proposed an alternative formulation drafted by the International Committee of the Red Cross (ICRC), which includes as a crime "employing weapons, projectiles and material and methods of warfare of such a nature as to cause superfluous injury or unnecessary suffering or [being] inherently indiscriminate." This formulation would give the Court greater scope and more flexibility to prosecute individuals for the use of a wide range of weapons possibly including chemical, biological and nuclear weapons.
All three proposals are currently in the draft Statute as bracketted text, i.e. text which has not yet been agreed upon. The US and other NATO states are now lobbying to remove both the ICRC formulation and the reference to nuclear weapons.
We must ensure that the ICRC wording, followed by specific inclusion of chemical, biological AND nuclear weapons, be kept in the draft Statute. The Lawyers' Committee on Nuclear Policy calls on all disarmament, peace and human rights activists and organizations to support this.
The threat or use of nuclear weapons should be included in the ICC Statute as a war crime. Repeated UN resolutions have declared the use of nuclear weapons to be a violation of the UN Charter and a crime against humanity. The International Court of Justice, in an advisory opinion delivered on July 8, 1996, affirmed that the threat or use of nuclear weapons would generally be contrary to the rules of international law.
Failure to include nuclear weapons in the ICC Statute, while including chemical and biological weapons, could legitimize the threat and use of nuclear weapons. This would fly in the face of the International Court of Justice decision and hinder efforts to achieve the global elimination of such weapons, which was ordered by the Court.
The war crimes text will be discussed at the next ICC preparatory committee meeting in New York, December 1-12, 1997. The NATO States are pushing for the reference to nuclear weapons to be removed at this meeting.
* Contact your Minister of Foreign Affairs and urge that your country support keeping the ICRC formulation, and the reference to nuclear weapons threat or use as a war crime, in the draft text of the ICC Statute at the ICC preparatory committee meeting in December. Please send us any responses you may receive.
* Come to New York in December to observe the meeting. The pro-nuclear states will find it more difficult to lobby for their untenable position if they are being watched, and other countries which are struggling to keep the reference to nuclear weapons in the draft Statute need support.
For further information, including how to get a UN Pass for December, contact;
Lawyers' Committee on Nuclear Policy
666 Broadway #625, New York, NY 10012.
Phone (1) 212 674 7790. Fax (1) 212 674 6199.