Hague law comes home: Prosecuting weapons offences at the International Criminal Court

• Jurisdiction: South Africa
• Author: Robert Cryer
• Published date: 15 August 2019
• Date: 15 August 2019
• Pages: 238-255
• Citation: 2003 Acta Juridica 238

Part D

INTERNATIONAL CRIMINAL LAW

Hague law comes home: Prosecuting

weapons offences at the International

Criminal Court

ROBERT CRYER*

University of Nottingham

I INTRODUCTION

The coming into being of the International Criminal Court (ICC) has

been the cause of considerable celebration around the proverbial

‘invisible college’ of international lawyers.

1

And rightly so. Lord Justice

Sedley of the English Court of Appeal has more than a little justif‌ication

for his view that the ICC represents ‘the greatest single advance ever

made in international humanitarian law enforcement’.

2

Nonetheless,

judgement on the humanitarian law aspects of the Rome Statute

3

must be

deferred at least until the relevant provisions have been subjected to a

thorough examination. It is the purpose of this chapter to evaluate some

of those provisions, namely those relating to the use of prohibited

weapons from the perspective of both international law and criminal law.

*LLB (Hons) (Wales)LLM, PhD (Nottingham), School of Law, University of Nottingham.

Thanks to N Boister, M Happold and D Klassen for their comments on an earlier draft.

1

See, for example, D McGoldrick ‘The International Criminal Court: An end to the

culture of impunity’ [1999] Criminal LR 627; M David ‘Grotius repudiated: The American

objections to the International Criminal Court and the commitment to international law’

(1999) 20 Michigan Journal of International Law 337. Support is not universal, for example, A P

Rubin ‘The International Criminal Court: A skeptical analysis’ in M N Schmitt (ed)

International Law Across the Spectrum of Conf‌lict: Essays in Honour of Professor L C Green On the

Occasion of His Eightieth Birthday (2000) 421; J Gurulé ‘United States opposition to the 1998

Rome Statute establishing an International Criminal Court: Is the Court’s jurisdiction truly

complementary to national criminal jurisdictions?’ (2001–2002) 35 Cornell International Law

Journal 1.

2

S Sedley ‘No more victors’justice?’ (2003) 25(1) London Review of Books 14 at 16.

3

Rome Statute for the International Criminal Court, UN Doc A/CONF183/9 (1998) 37

ILM 999 (1998), hereinafter ‘Rome Statute’.

238

2003 Acta Juridica 238

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International humanitarian law has traditionally been split into two

sub-categories, ‘Hague’law and ‘Geneva’law, so named after the places

where the primary treaties relating to each were drafted.

4

In short,

Geneva law is concerned with the protection of those persons not

involved in hostilities, while Hague law deals with the conduct of

hostilities in relation to legitimate targets.

5

These classif‌ications were

never entirely satisfactory; for example, attacks on legitimate targets

(Hague law) may have effects on those not taking part in hostilities (which

might more naturally fall under Geneva law). In addition, the 1977

Additional Protocol I to the Geneva Conventions dealt with matters

traditionally considered to be within the ambit of both Geneva and

Hague law.

Although the distinction between Hague and Geneva law may not be

appropriate in a normative sense, this chapter focuses upon aspects of the

Rome Statute that deal with matters normally considered as falling under

Hague law. In the recent past, we have seen a swing in the West towards

‘zero-casualty warfare’

6

in which entire conf‌licts are fought by the

technologically advanced states from the air, out of range of anti-aircraft

defences. Ground forces f‌ighting in these conf‌licts are drawn from local

parties to the conf‌lict whose conduct may not be attributable to their

erstwhile airborne allies. Kosovo and Afghanistan provide two examples

of this form of warfare.

7

The Hague law-type provisions of the Rome

Statute are thus those most likely to be relevant to the activities of those

states f‌ighting from the air. Debates have raged over whether or not the

use of cluster weapons or depleted-uranium weapons in Kosovo and

Afghanistan is consistent with international humanitarian law.

It is possible that the ICC may be able to improve understanding of the

law and put some f‌lesh on the bones of the provisions of humanitarian

law. It is very rare for the provisions on conduct of hostilities to receive

authoritative interpretation. The f‌irst time detailed consideration was

given to the lawfulness of particular attacks in the modern era was the

Blaškic´ case in the International Criminal Tribunal for the former

Yugoslavia (ICTY) in 2000.

8

Therefore, by merely applying the law, the

4

These being, at the time the distinction arose, the 1907 Hague Convention IV

Respecting the Laws and Customs of War on Land (1910) UKTS 9 Cd 5030 and the 1929

Geneva Convention Relative to the Treatment of Prisoners of War118 LNTS 343.

5

For further explanation see H McCoubrey and N D White International Law and Armed

Conf‌lict (1992) 217–9.

6

A P V Rogers ‘Zero casualty warfare’(2000) 837 International Review of the Red Cross 165.

7

On the latter, and the possibility of attribution, see R Cryer ‘The f‌ine art of friendship: Jus

in bello in Afghanistan’(2002) 7 Journal of Conf‌lict and Security Law 37 at 41–7.

8

Prosecutor v Blaškic´, Judgment, Case No IT–95–14-T, 3 March 2000. In commenting on

that decision, Fenrick noted that international humanitarian law treaties ‘are worded at a high

level of generality,particularly insofar as they address the conduct of hostilities’and ‘there are no

usable precedents for judicial determination of the lawfulness of particular attacks’.WJ

239WEAPONS OFFENCES AT THE ICC

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