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On June 9, 2000, France ratified the Rome Statute
of the International Criminal Court (ICC). The luster of the first ratification by a
Permanent Five, nuclear-armed power was tarnished considerably by an accompanying
"interpretative declaration" stating that the war crimes provisions of the
Statute
relate solely to conventional weapons and can neither
regulate nor prohibit the possible use of nuclear weapons nor impair the other rules of
international law applicable to other weapons necessary to the exercise by France of its
inherent right of self-defence.
In other words, France claimed that well-established
rules of humanitarian law codified by the Statute, for example those prohibiting attacks
upon civilians and civilian infrastructure, do not apply to nuclear weapons. This is so,
France maintained, unless and until the Statute is amended to add nuclear and other
non-conventional weapons to the list of weapons (expanding bullets, poisonous materials)
whose use is expressly prohibited by the Statute.
As the Lawyers’ Committee on Nuclear Policy
explained in a paper released soon after the French ratification at a June 2000
preparatory meeting of governments regarding the ICC (www.lcnp.org/global/french.htm),
there is absolutely no basis for the French position. The paper cites the International
Court of Justice nuclear weapons opinion and explains regarding the Rome Statute:
That a weapon was proposed for but not included on the
list of prohibited weapons - whether landmine, blinding laser weapon, depleted uranium
munition, or nuclear weapon – does not mean, for example, that it can be used to
attack civilians, civilian objects, undefended towns, religious buildings, hospitals,
combatants who have surrendered, medical units displaying Geneva Convention emblems, or UN
peacekeeping personnel, all protected by various provisions of article 8(2)(b) [war crimes
in international conflicts], or that it can be used to carry out an attack causing
disproportionate damage to civilian society or the environment (8(2)(b)(iv)).
Without naming France, New Zealand squarely rejected any
nuclear exemption in a declaration accompanying its September 7, 2000 ratification. The
declaration states:
1. The Government of New Zealand notes that the majority
of the war crimes specified in article 8 of the Rome Statute, in particular those in
[provisions relating to various kinds of attacks on civilian targets], make no reference
to the type of the weapons employed to commit the particular crime. The Government of New
Zealand recalls that the fundamental principle that underpins international humanitarian
law is to mitigate and circumscribe the cruelty of war for humanitarian reasons and that,
rather than being limited to weaponry of an earlier time, this branch of law has evolved,
and continues to evolve, to meet contemporary circumstances. Accordingly, it is the view
of the Government of New Zealand that it would be inconsistent with principles of
international humanitarian law to purport to limit the scope of article 8, in particular
article 8(2)(b), to events that involve conventional weapons only.
2. The Government of New Zealand finds support for its
view in the Advisory Opinion of the International Court of Justice on the Legality of
the Threat or Use of Nuclear Weapons (1996) and draws attention to paragraph 86, in
particular, where the Court stated that the conclusion that humanitarian law did not apply
to such weapons "would be incompatible with the intrinsically humanitarian character
of the legal principles in question which permeates the entire law of armed conflict and
applies to all forms of warfare and to all kinds of weapons, those of the past, those of
the present and those of the future."
3. The Government of New Zealand further notes that
international humanitarian law applies equally to aggressor and defender states and its
application in a particular context is not dependent on a determination of whether or not
a state is acting in self-defence. In this respect it refers to paragraphs 40-42 of the
Advisory Opinion in the Nuclear Weapons Case.
Other governments would do well also to note the
invalidity of the French position, which hopefully will be the only one of its kind. There
is no indication that other nuclear-armed states are prepared to take this view. Unlike
France, the United States, the United Kingdom, and Russia each explicitly accepted that
nuclear weapons are subject to humanitarian law in their arguments before the
International Court of Justice in November 1995.
The International Criminal Court will become operational
once 60 states have ratified the Statute. The NGO Coalition for the International Criminal
Court (www.iccnow.org) anticipates this may occur as
early as 2002.
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