For those of you who are international law junkies (– and really, who isn’t?) ASIL has a very interesting blog on the ICC Review Conference that took place over the last two weeks in Kampala, Uganda. David Scheffer, a notable scholar on both the ICC and international criminal justice, has a really interesting post summarizing most of the decisions that were made.
Of course one of the most interesting developments is, of course, the crime of aggression. However, what I find to be more interesting is the expansion of the prohibition of weapons banned in international armed conflict (including expanding bullets) in non-international armed conflicts, or NIAC – the so-called “Belgium amendment”.
This may seem relatively straightforward – the law of armed conflict has had regulation of bullets since 1868. As Scheffer himself writes:
These weapons already are included in Article 8(2)(b) for international armed conflicts, without anyone raising any real fuss, and this amendment is a logical extension of such weapons to non-international armed conflicts. So they are barely considered “new” weapons; rather they are long-standing weapons in the Rome Statute now introduced into an additional scenario of armed conflicts.
Yet, in areas of conflict such as Iraq and Afghanistan – where whether one is fighting an international or non-international armed conflict seems to change daily, this could have very serious consequences. It might affect sniper and counter-terrorism operations not only in these areas, but also within states, where the need to have one-shot/one-kill is important for security.
Additionally, incorporating the development of weapons law into the ICC Statute is an interesting new tactic for humanitarian groups. While the Belgium Amendment was formally supported by Austria, Argentina, Belgium, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia and Switzerland, there also has been clear support and lobbying from humanitarian organizations, particularly the ICRC.
This development also confirms the trend whereby humanitarians, unable to affect the kind of change they want to see through the ICRC Customary Law Study or the Convention on Conventional Weapons (CCW) Review Process (of which there will be a conference next year), are increasingly turning to alternative international fora. These fora have real binding powers and operate largely two-thirds majority voting system, like the voting proceedure in the General Assembly. This was the general approach of the process that lead to the Ottawa Treaty and Cluster Munitions Treaty. Western countries and militarily affected states have, by and large, favoured consensus approaches over this later system for rather obvious reasons.
It has been my understanding that the US is to issue a statement of understanding on the ICC soon (I’m a little surprised it hasn’t been out already – but perhaps they were waiting for the outcome of the Conference?) However, I have to believe that these kinds of approaches are not helping to bring the US any closer to ratifying – but perhaps the state-parties to the ICC are simply no longer inclined to care or bother trying.