Addition of New War Crimes in the ICC Statute – A critical analysis

Sixteenth Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) adopted three amendments to the Article 8 of the Statute by adding three war crimes namely the use of biological weapons, the use of weapons injuring by non-detectable fragments and the use of laser weapons causing permanent blindness. The present study critically examines the judiciousness and legitimacy of the inclusion of these three new crimes in the war crimes list mainly on two counts – the question of fragmentation of the ICC jurisdiction due to new weapons amendments and obligations to include only those crimes which are under customary international law in the ICC Statute. Subsequent analysis of the fragmentation issue, however, revealed that Office of the Prosecutor (OTP) has the independence to frame charge against any non-State Party who has committed new war crimes on the State Party. Reaffirmation of the judicial independence as included in paragraph 3 of the ASP Resolution ‘ICC-ASP/16/Res.5’ also advocates non-fragmentation of the ICC jurisdiction. Apropos of exploration of the jurisdiction of the Court beyond customary international law through inclusion of new war crimes, this study proclaims that the Court has every right to administer jurisdictional interpretation based on criminalization of conduct and to consider superiority of the ‘internationally recognized human rights’ if there is a norm conflict between the non-retroactive principle and the comprehensive statutory norms.