The French "Interpretative Declaration"
by John Burroughs
|In ratifying the Rome Statute of the International Criminal
Court on June 9, 2000, France included an "Interpretative
Declaration" which among other things stated as follows:
There is nothing in the Statute which supports this "interpretation". Nor, so far as the Lawyers' Committee on Nuclear Policy is aware, is there anything (except perhaps from France itself) in the negotiating history of the Statute which supports this "interpretation". The fact that nuclear weapons were not included among those weapons whose use was expressly criminalized (expanding bullets, poison, poisonous and analogous materials, Art. 8(2)(b)(xvii), (xviii), and (xix)) has no bearing on whether the other provisions of Article 8 apply. 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), or that it can be used to carry out an attack causing disproportionate damage to civilian society or the environment (Art. 8(2)(b)(iv)).
It should go without saying that humanitarian law applies to nuclear weapons just as it does to all other weapons. The International Court of Justice observed that the conclusion that humanitarian law did not apply to nuclear 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." Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of 8 July 1996), para. 86, emphasis added. The ICJ also noted that "[n]one of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints" and quoted statements of three nuclear weapon states (Russia, the United Kingdom, and the United States) affirming that law governing the conduct of armed conflict applies to nuclear weapons. Para. 86. One of the cardinal principles identified by the ICJ as applying to nuclear weapons, the principle of distinction protecting the civilian population and civilian objects (para. 78, also para. 95), is reflected in the Rome Statute prohibitions of attacking civilians or civilian objects (Art. 8(2)(b)(i) and (ii)).
The Lawyers' Committee on Nuclear Policy urges states to set forth in a written communication the unacceptability of the French "interpretation" regarding nuclear weapons, to counteract any invidious effect the French position may have on the Statute and international law, and to contribute to the continuing delegitimation of nuclear weapons in multiple international settings.
The "interpretation" is subject to challenge first because it amounts to a reservation, and reservations are barred by the Statute, Article 120. The Vienna Convention on the Law of Treaties, Article 2(d), defines a reservation as a "unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State". (Emphasis added.) Here the French "interpretation" purports to modify the legal effect of the Statute's war crimes provisions by denying their applicability to nuclear weapons. See Arbitration between the United Kingdom and France on the Delimitation of the Continental Shelf, Decision of 30 June 1977, 18 I.L.M. 397, 418, para. 55 (1979). The "interpretation" is therefore a reservation, and as such is not permissible or valid pursuant to Article 120 and is a nullity. See Art. 19(a), Vienna Convention on the Law of Treaties.
The "interpretation" is subject to challenge second because even if considered to be a true interpretative statement it is incorrect for the reasons stated above.
States may also wish to address other elements of the "Interpretative Declaration", including but not limited to the reference to "other rules of international law applicable to other weapons necessary to the exercise by France of its inherent right of self-defence" quoted above and provision (1) of the "Declaration" stating that the provisions of the Statute "do not preclude France from exercising its inherent right of self-defence". France's invocation of the right of self-defense notwithstanding, and as the Statute reflects, humanitarian law applies equally to aggressor and defender states. Equal application avoids varying the content of humanitarian law depending on the determination of whether a state is acting in self-defense, a determination that would be made in the first instance by planners of military operations who are nationals of the state in question.
The Government of the French Republic considers that the provisions of article 8, paragraph 2 (b) (ii) and (v), do not refer to the possible collateral damage resulting from attacks directed against military objectives.
II. Declaration pursuant to article 87, paragraph 2
Pursuant to article 87, paragraph 2, of the Statute, the French Republic declares that
III. Declaration under article 124
Pursuant to article 124 of the Statute of the International Criminal Court, the French
Original of "Interpretative Declarations", part I above:
DECLARATION INTERPRETATIVE DE LA FRANCE