Expanding Jurisdiction over

War Crimes under Article 8

of the ICC Statute
Amal Alamuddin and PhilippaWebb*

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Abstract
The Review Conference on the International Criminal Court (ICC) held in Kampala
in June 2010 resulted in the first amendment ever made to the Rome Statute. This
historic amendment was, in substance, a rather modest change to the provisions on
war crimes ç expanding the Court’s jurisdiction over the use of prohibited weapons
in international armed conflicts to their use in armed conflicts of a non-
international character. The amendment was relatively uncontroversial because the
language to be added to Article 8, and the accompanying elements of the crimes,
already existed for international armed conflicts. This language has yet to be inter-
preted by the ICC, however. The breadth of the Court’s jurisdiction over the newly
added crime will likely depend on how broadly the Court will interpret the prohib-
ition on the use of ‘gases’ and the mens rea requirement for each of the crimes.
Perhaps most importantly, the Court will have to clearly define where the jurisdic-
tional line between internal law-enforcement activities and armed conflicts should
be drawn. Overall, the amendment forms part of a broader movement to reduce or
remove the distinctions between the protections available in international and
non-international armed conflicts. The process by which the amendment was
successfully adopted is also instructive for future efforts to modify the ICC Statute.

* Amal Alamuddin MA (Oxon), LLM (NYU); Barrister (pupil), Doughty Street Chambers, London;
formerly Legal Officer, Office of the Prosecutor of the Special Tribunal for Lebanon; Associate
Legal Officer to Judge (now President) Patrick Robinson, International Criminal Tribunal for
the former Yugoslavia; and judicial assistant to Judges Berman, Elaraby and Vereschetin,
International Court of Justice. [[email protected]]
Philippa Webb BA (Hons)/LLB (UNSW), LLM (Yale); Visiting Assistant Professor, Faculty of Law,
Leiden University; formerly Special Assistant and Legal Officer to President Rosalyn Higgins
of the International Court of Justice; Associate Legal Adviser to Prosecutor Luis
Moreno-Ocampo, International Criminal Court; and judicial assistant to Judge Higgins and
Judge (now President) Owada, International Court of Justice; member, Editorial Committee of
the Journal. [[email protected]]
Ms Alamuddin and Ms Webb acted as legal advisers to the Kingdom of Bahrain during the ICC
Review Conference. The views expressed herein are those of the authors alone and do not ne-
cessarily reflect the views of the Special Tribunal for Lebanon, the International Criminal
Court, the United Nations or the Kingdom of Bahrain.
............................................................................
Journal of International Criminal Justice 8 (2010), 1219^1243 doi:10.1093/jicj/mqq066
ß Oxford University Press, 2010, All rights reserved. For permissions, please email: [email protected]
1220 JICJ 8 (2010), 1219^1243

1. Introduction
On 10 June 2010 around 11:00 p.m., the first amendment to the Rome Statute of
the International Criminal Court (ICC) was adopted by consensus in Kampala,
Uganda.1 This historic moment concerned a rather modest amendment to the
provisions on war crimes, but it forms part of a broader movement to reduce
or remove the distinctions between the protections available in international
and non-international armed conflicts. The process by which the amendment
was successfully brought to fruition is also instructive for future efforts to
modify the ICC Statute.
The amendment expands the Court’s existing jurisdiction over the
war crimes in international armed conflicts contained in Article 8(2)(b)(xvii),

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(xviii) and (xix) to armed conflicts of a non-international character by
including the same crimes in Article 8(2)(e) as new sub-paragraphs (xiii),
(xiv) and (xv).2 Three types of crimes are affected: employing poison or poi-
soned weapons; employing asphyxiating, poisonous or other gases, and all
analogous liquids, materials and devices; and employing bullets which ex-
pand or flatten easily in the human body. Under the terms of the amend-
ment, any state that accepts the amendment will be bound one year
after ratification; states that do not accept the amendment will not be so
bound.
The Article 8 amendment is part of an ongoing effort by some judges, scho-
lars and non-governmental organizations (NGOs) to have a unified body of
international humanitarian law (IHL) that does not distinguish between inter-
national and non-international armed conflicts.3 The distinction is strongly
drawn in treaty law. International armed conflicts, in which at least two
states are involved, are subject to around 600 rules contained in the four
Geneva Conventions of 1949 and Additional Protocol I of 1977.4 A much more
restricted set of rules ç only 29 ç applies to non-international armed
conflicts, which involve fighting between the governmental authorities and
armed groups or between such groups within a state.5 Common Article 3 to

1 Amendments to Article 8 of the Rome Statute, Resolution RC/Res.5, 10 June 2010 (Amendment
Resolution).
2 Amendment Resolution, annex I.
3 For an overview, see J. Stewart, ‘Towards a Single Definition of Armed Conflict in International
Humanitarian Law: A Critique of Internationalized Armed Conflict’, 85 International Review of
the Red Cross (2003) 313^350.
4 The scope of application is contained in Art. 2 common to the Geneva Conventions of 1949:
‘all cases of declared war or of any other armed conflict which may arise between two or
more of the High Contracting Parties, even if the state of war is not recognized by one of
them. The Convention shall also apply to all cases of partial or total occupation of the territory
of a High Contracting Party, even if the said occupation meets with no armed resistance’.
The number of rules is cited in S. Boelaert-Suominen, ‘Grave Breaches, Universal
Jurisdiction and Internal Armed Conflict: Is Customary Law Moving towards a Uniform
Enforcement Mechanism for All Armed Conflicts?’ 5 Journal of Conflict and Security Law
(2000) 63^103, note 31.
5 This definition comes from the Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, Tadic¤ (IT-94-1), Appeals Chamber, 2 October 1995, x 70. Common Art. 3 to the
 Expanding Jurisdiction over War Crimes 1221

the Geneva Conventions and Additional Protocol II are the main instruments
that govern such conflicts.
Despite the disparity in the rules applicable in international and
non-international armed conflicts in conventional law, there are signs that
customary international law is moving towards a common approach to differ-
ent types of conflicts. In an important early decision, the Appeals Chamber
of the International Criminal Tribunal for the former Yugoslavia (ICTY)
held that a number of customary rules that originally applied only to inter-
national armed conflicts had now been extended to cover non-international
armed conflicts.6 The Chamber pointed out this extension ‘has not taken
place in the form of a full and mechanical transplant of those rules to in-
ternal conflicts; rather, the general essence of those rules, and not the de-

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tailed regulation they may contain, become applicable to internal conflicts’.7
In addition, the International Committee of the Red Cross (ICRC)’s
masterful study of customary IHL provides evidence that many customary
rules apply in both international and non-international armed conflicts.
It shows
the extent to which State practice has gone beyond existing treaty law and expanded the
rules applicable to non-international armed conflicts. In particular, the gaps in the regula-
tion of the conduct of hostilities in Additional Protocol II have largely been filled through
State practice, which has led to the creation of rules parallel to those in Additional
Protocol I, but applicable as customary law to non-international armed conflicts.8

This practice is, in some ways, unsurprising because it reflects the changing
nature of armed conflict. Contemporary conflicts are often a mixture of inter-
national and non-international elements, with internal hostilities being ren-
dered international through state intervention, and international conflicts
being conducted covertly as internal conflicts.9
Compared with the existing conventional law on IHL, the delegates drafting
the ICC Statute in Rome took an expansive ç although not comprehensive ç
approach to the customary rules applicable to non-international armed

Geneva Conventions uses a negative definition of ‘armed conflicts not of an international

character’. Additional Protocol II sets a higher standard than Common Art. 3 for its application
in Art. 1: ‘all armed conflicts ::: which take place in the territory of a High Contracting Party
between its armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations and to implement this
Protocol’.
6 Tadic¤ , ibid., at xx 126^127. See also A. Marston Danner, ‘When Courts Make Law: How the
International Criminal Tribunals Recast the Laws of War’, 59 Vanderbilt Law Review (2006) 1.
7 Tadic¤ , ibid., at x 126.
8 J-M. Henckaerts and L. Doswald-Beck (eds), Customary International Humanitarian Law
(Cambridge: Cambridge University Press, 2005), at xxxv.
9 Stewart, supra note 3, 315^316; W.M. Reisman and J. Silk, ‘Which Law Applies To The Afghan
Conflict?’, 82 American Journal of International Law (1988) at 465. See also infra note 56.
1222 JICJ 8 (2010), 1219^1243

conflicts.10 The ICC Statute goes beyond the Geneva Conventions and
Additional Protocols by including several war crimes applicable to both inter-
national and non-international armed conflicts.11 Nonetheless, the drafters of
the Statute did maintain the overall distinction by separating the war crimes
into Article 8(2)(a) and (b) (international armed conflict) and Article 8(2)(c)
and (e) (non-international armed conflict) and making the former more expan-
sive than the latter, including when it came to prohibited weapons. The amend-
ment to Article 8 adopted in Kampala is a step towards bridging this gap in
the ICC Statute as well as the gap between conventional and customary IHL.

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2. From Rome to Kampala: Building Consensus
There was little debate during the Rome Conference as to whether prohibited
weapons should be included in Article 8(2)(e) of the Statute relating to
non-international armed conflicts. The draft Statute adopted by the Preparatory
Committee in April 1998 in advance of the Rome Conference contained parallel
provisions for prohibited weapons in non-international armed conflict corres-
ponding to those for international armed conflict. These provisions were quietly
dropped during the Rome Conference, despite objections from some states.12 In
Rome, the discussion on weapons focussed on their use in international armed
conflicts and the time ran out for reflecting on whether certain weapons should
also be prohibited in non-international armed conflicts.13 This issue, therefore,
lay dormant since1998.
The amendment to Article 8(2)(e) was the initiative of Belgium. Belgium
announced at the seventh session of the Assembly of States Parties (ASP) in
November 2008 that it was planning to make proposals addressing the expan-
sion of the Court’s jurisdiction over certain weapons.14 Initially, Belgium
submitted three proposals for amendments to the ICC Statute, all of which
related to weapons. The proposals were initially considered during the second

10 See also the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects
(adopted 10 October 1980, entered into force 2 December 1983), which was amended in 2001
to extend its scope to non-international armed conflicts.
11 These include rape, sexual slavery, enforced prostitution, forced pregnancy and enforced steril-
ization (Art. 8(2)(b)(xxii) and Art. 8(2)(e)(vi)); pillaging a town or place (Art. 8(2)(b)(xvi) and
Art. 8(2)(d)(v)); and declaring no quarter will be given (Art. 8(2)(b)(xii) and Art. 8(2)(d)(x)).
12 For example, UN Doc. A/CONF.183/C.1/SR.34, xx 4 (Sweden) and 108 (Australia). Clark points out
that the deletion of the paragraphs on weapons in non-international armed conflicts caused
‘much mystification in the halls’: see R.S. Clark, ‘Building on Article 8(2)(b)(xx) of the Rome
Statute of the International Criminal Court: Weapons and Methods of Warfare’, 12 New
Criminal Law Review (2009) 366^389, at 373.
13 ICRC, The weapons amendment (Article 8.2 letter e) of the ICC Statute), 1 March 2010. For an excel-
lent overview of the discussions in Rome, see Clark, ibid., 369^377.
14 Clark, ibid., at 369, note 7.
 Expanding Jurisdiction over War Crimes 1223

round of informal consultations by the ASP held on 14 April 2009.15 At the

third and fourth rounds of informal consultations, held on 10 June and
11 September 2009, respectively, the delegation of Belgium stated that, in the
absence of broad support, it would not request that all the proposals be con-
veyed to the Review Conference.16 Ultimately, only the amendment relating to
Article 8(2)(e) was submitted to the Review Conference. The other two
proposed amendments ç relating to the use of biological and chemical
weapons, anti-personnel mines, non-detectable fragments and blinding laser
weapons ç were dropped.17 A proposal by Mexico to amend Article 8(2)(b) to
include using or threatening to use nuclear weapons as a war crime was also
dropped due to a lack of consensus.18 The eighth session of the ASP decided to

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convey the draft amendment to Article 8 of the Statute and to the Elements of
Crimes (Elements) to the Review Conference.19
Belgium reinforced its amendment proposal with bilateral visits in various
capitals, corridor discussions during ASP sessions, and involvement in the
New York and Hague Working Groups. It succeeded in having its amendment
to Article 8 co-sponsored by 18 other states, covering every region.20 The strat-
egy was to prove that the amendment was not a ‘European concern’, but was
universal in nature. By the time the Kampala Conference was held, Belgium
had achieved a very large degree of consensus on a discrete issue, which bode
well for the eventual adoption of the amendment.

3. Kampala Review Conference

In Kampala, the amendment toArticle 8 was considered by theWorking Group on
Other Amendments, which was also responsible for the proposal to delete, retain
or redraft Article124. The Working Group held three meetings on1, 4 and10 June
2010 and one round of informal consultations on 9 June 2010, which concerned
Article124 alone.21

15 Report of the Bureau on the Review Conference, ICC-ASP/8/43, 15 November 2009, x 32. Comments
from delegations led to a revised version, which was considered at following meetings and sub-
sequently submitted to the Secretary-General of the UN on 29 September 2009 (annex I).
16 Ibid., at x 33.
17 Report of the Bureau on the Review Conference, Addendum, ICC-ASP/8/43/Add.1, 10 November
2009.
18 Report of the Bureau on the Review Conference, supra note 15, xx 39^40.
19 Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal
Court, Eighth Session, The Hague, 18-26 November 2009, ICC-ASP/8/20, vol. 1, part II, Resolution
ICC-ASP/8/Res.6, x 3 and annex III (for the amendment to the Statute); Official Records of the
Assembly of States Parties to the Rome Statute of the International Criminal Court, Resumed
Eighth Session, New York, 22-25 March 2010, ICC-ASP/8/20/Add.1, part II, Resolution ICC-ASP/
8/Res.9, x 9 and annex VIII (for amendment to the Elements of Crimes).
20 Austria, Argentina, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia,
Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia and Switzerland.
21 The Chairpersons of the Working Group were Mr Marcelo Bo«hlke (Brazil) and Ms Stella Orina
(Kenya).
1224 JICJ 8 (2010), 1219^1243

When introducing the draft resolution amending Article 8, the representa-

tive of Belgium, Gerard Dive, highlighted several aspects. He emphasized that
the three crimes proposed for inclusion in the Statute were not new crimes
under international law; the amendment did not seek to extend the scope of
existing crimes, but the jurisdiction of the Court.22 He noted that bullets that
expand or flatten easily were not subject to an absolute prohibition in custom-
ary international law;23 the crime was committed only if the perpetrator had
the requisite intent, namely if he or she ‘was aware that the nature of the bul-
lets is such that their employment would uselessly aggravate suffering or the
wounding effect’.24 Mr Dive tried to allay the fears of certain states by pointing
out that the crimes were limited to situations of armed conflict and thus
could not potentially affect pure law-enforcement scenarios. Moreover, pre-

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ambular Paragraph 3 of the draft resolution confirmed that future States
Parties would be allowed to decide whether to accept the amendment at the
time of ratification or accession to the Statute. Finally, Mr Dive observed that
the Elements for the proposed crimes had met with consensus at the last ses-
sion of the ASP and mirrored the existing Elements for the war crimes in
Article 8(2)(b)(xvii), (xviii) and (xix) apart from the reference to
non-international armed conflict.25
From the very beginning of the Conference, the amendment concerning the
crime of aggression cast a long shadow. The Working Group dealing with
Article 8 noted that the procedure for entry into force of the Article 8 amend-
ment was specified in preambular Paragraph 2 of the draft resolution as
taking place under Article 121(5). But since the choice between entry into
force pursuant to Article 121(4) or 121(5) was a controversial point regarding
the crime of aggression, the Working Group stated that this issue would be dis-
cussed in the plenary.26
At the second meeting of the Working Group on 4 June 2010, the Belgian
representative, Mr Dive, explained small changes that had been made to the
draft resolution.27 Preambular Paragraph 2 on entry into force had been
placed in square brackets since it would await the outcome of discussions on
the crime of aggression. Preambular Paragraphs 8 and 9 had been altered to
emphasize that the crimes contained in them were not new crimes under
international law. Preambular Paragraph 9 defining the intent of the perpetra-
tor using bullets that expand or flatten easily was also changed: instead of a

22 Report of the Working Group on other amendments, RC/20 (advance version), annex III, x 4. This
paragraph was later redrafted for clarity by the UK representative.
23 Cf. Amnesty International Public Statement, Review Conference of the Rome Statute of the
International Criminal Court, 11 June 2010 (Amnesty Statement).
24 Report of the Working Group on other amendments, RC/20 (advance version), annex III, x 5;
Draft resolution amending article 8 of the Rome Statute, RC/WGOA/1/, 30 May 2010, preambular
paragraph 9.
25 Report of the Working Group on other amendments, RC/20 (advance version), annex III, x 6; Draft
resolution amending article 8 of the Rome Statute, RC/WGOA/1/ (30 May 2010), annex II.
26 Report of the Working Group on other amendments, RC/20 (advance version), annex III, x 7.
27 Draft resolution amending article 8 of the Rome Statute, RC/WGOA/1/ (30 May 2010) compared
with RC/WGOA/1/Rev.1 (3 June 2010) and RC/WGOA/1/Rev.2 (4 June 2010).
 Expanding Jurisdiction over War Crimes 1225

reference to being ‘aware’ that their use ‘would uselessly aggravate suffering or
the wounding effect’, the resolution now stated that the perpetrator had to
employ the bullets ‘to uselessly aggravate suffering or the wounding effect’.28
Mr Dive noted that he had discussed the draft resolution with more than 50
delegations and consulted the ICRC on the paragraphs relating to IHL. He
admitted it was a compromise text but urged consensus. The Working Group
adopted the draft resolution and decided to refer it to the Conference for adop-
tion, subject to a decision on the procedure set out in Article 121. The only dele-
gation that took the floor was the Philippines (a non-State Party), which
pointed out that, in relation to dum-dum bullets, there is a need for specialized
ammunition in certain counter-terrorism situations, hostage rescues and

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piracy operations as their use protects against collateral damage. The Filipino
representative added that while it was not standard policy for Filipino govern-
ment security forces to use these weapons, they did recognize the need to use
them on occasion to protect innocent lives and to achieve legitimate objectives.
At the meeting on 10 June 2010, two small amendments were made to the
Report of the Working Group. The Belgian representative added a sentence
noting that ‘It was also stressed that law-enforcement situations are excluded
from the Court’s jurisdiction’, reflecting the fact that this was the key concern
among states regarding the amendment. The UK representative suggested
some redrafting of Paragraph 4 of the Report to clarify that the amendment
extended the jurisdiction of the Court to certain crimes if committed in a
non-international armed conflict.29 The Report was adopted as orally revised.
At around 11:00 p.m. on 10 June 2010, as consensus was still building
around the crime of aggression amendment, the President of the ASP briefly
introduced the draft resolution amending Article 8, saying that the square
brackets around preambular Paragraph 2 should be removed as well as the
accompanying footnote.30 The draft resolution bringing the first amendment
of the Statute to life was then adopted by consensus and without further
discussion ç in stark contrast to the convoluted, and sometimes combative,
negotiations on the crime of aggression.
Only a handful of States Parties took the floor after adoption. Belgium noted
the support of its co-sponsors of the resolution and celebrated that as a result
the ICC can protect ‘more than ever’ those who suffer in any type of armed
conflict. France confirmed its interpretation of the language relating to
dum-dum bullets that refers to the mens rea of the perpetrator. This statement
was endorsed by Canada, the United States and Israel. Canada added that the
resolution captured the right balance between two important humanitarian
objectives: avoiding unnecessary suffering and limiting incidental injury to

28 Cf. Art 8(2)(e)(xv), paragraph 3. See part 4.A.3. infra.

29 The new wording read: ‘It was stressed that the crimes that were proposed for inclusion in
Article 8(2)(e) were already crimes within the jurisdiction of the Court if committed in an inter-
national armed conflict and the amendment extended the jurisdiction of the Court to such
crimes if committed in a non-international armed conflict’.
30 The footnote read: ‘This text is subject to further consideration, namely with regard to the out-
come of the discussion on the other amendments’.
1226 JICJ 8 (2010), 1219^1243

innocent third parties. The US congratulated the States Parties on the first
amendment to the ICC Statute. Amnesty International welcomed the adoption
as harmonizing the list of war crimes and commented on some aspects of the
language of the resolution.31

4. Analysis of the Amendment in Substance

Although the adoption process was smooth, with no changes being made to
the language of the amendment itself during the Kampala conference, there
are several issues relating to the meaning and scope of the amendment that

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remain ambiguous or controversial. These can be grouped into three areas (i)
the question of the breadth of the prohibition on ‘asphyxiating, poisonous or
other gases’ and whether it could include riot-control agents or chemical and
biological weapons; (ii) the question of whether the use of dum-dum bullets in
law-enforcement situations could get caught in the ICC jurisdictional net
post-amendment; and (iii) the question of the proper interpretation of the
mens rea requirement for the newly added crimes and for the amendment on
prohibited bullets in particular. In addition, the amendment seen in the
context of international law on prohibited weapons, and the law of armed
conflict more broadly, generated criticism that it was an all-too-modest, or
even purely symbolic, extension of criminal liability.32

A. What the Amendment Means: Areas of Ambiguity or Controversy

1. ‘A sphyxiating, Poisonous or other Gases’

Several delegates in the lead-up to the Kampala conference raised questions
about the meaning of the phrase ‘asphyxiating, poisonous33 or other gases,
and all analogous liquids, materials or devices’ in Belgium’s amendment
proposal. The ambiguity in this broad language was later compounded by the
fact that whereas the English version of the amendment criminalizes the use
of ‘asphyxiating, poisonous or other gases’, the French and Spanish translations
that were adopted use the term ‘asphyxiating, poisonous or similar gases’.34

31 Amnesty Statement, supra note 23. See also the earlier statement of support for the amendment
by other NGOs: ICRC Statement at the First Review Conference of the Statute of the ICC,
Kampala, 31 May^11 June 2010, at 2; Human Rights Watch, Making Kampala Count: Advancing
the Global Fight against Impunity at the ICC Review Conference, May 2010, at 5.
32 See e.g. infra note 89.
33 It has been suggested that ‘employing poison or poisoned weapons’ could include, for instance,
the poisoning of water supplies. See M. Klamberg, ICL Database & Commentary, available
online at http://www.iclklamberg.com/Statute.htm#_ftn76 (visited 20 August 2010).
34 Emphasis added. See e.g. French translation (‘des gaz asphyxiants, toxiques ou similaires, ainsi que
tous liquides, matie' res ou proce¤ de¤ s analogues’). The Arabic, Chinese and Russian versions appear
to be consistent with the English translation.
 Expanding Jurisdiction over War Crimes 1227

The question of whether the use of ‘poisonous or other gases’or ‘analogous :::
materials’ could include riot-control agents such as mustard spray or tear gas
was debated in Rome in relation to international armed conflicts, and it may
be even more relevant in the context of internal conflicts. The phrase is derived
from the 1935 Geneva Gas Protocol, and the issue of whether the use of
agents such as tear gas is prohibited by this Protocol has been a matter of
debate.35 As a result, it is equally unsettled whether it comes within Article 8
of the ICC Statute.36 Ultimately, it appears that ç as with Article 8(2)(b)(vii)
and (viii) in relation to international armed conflicts ç the amendment provi-
sion on gases would not cover such non-lethal gases, because the elements of
this crime require that the gas ‘was such that it causes death or serious damage
to health in the ordinary course of events’.37 Since riot-control agents, as the

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name suggests, are ordinarily materials that temporarily make people unable
to function by causing irritation to the eyes, mouth, throat, lungs, or skin,
they are unlikely to meet this definition.
Another question that arises is whether chemical and biological weapons
could be covered by the prohibition on ‘asphyxiating, poisonous or other
gases, and all analogous liquids, materials or devices’ that currently exists in
Article 8 in relation to international conflicts and is extended to
non-international armed conflicts by the amendment adopted in Kampala.
Some commentators believe that they can.38 Others believe the language may
cover chemical, but not biological weapons.39 Yet others insist that neither is
covered.40 The latter view has been defended on the basis that these weapons

35 See e.g. K. Dormann, ‘War Crimes under the Rome Statute of the International Criminal Court,
with a Special Focus on the Negotiations on the Elements of Crimes’, Max Planck Yearbook of
United Nations Law, Vol. 7 (2003) 341^407, at 390.
36 See Art. 8(2)(b)(iv) ICCSt. See also M. Boot, Nullum Crimen Sine Lege and the Subject Matter
Jurisdiction of the International Criminal Court (Antwerp: Intersentia, 2001), at 597 (‘it must be
noted that the ::: three subparagraphs on weapons are not that clear on which weapons are ac-
tually included. States have taken different positions on the question of whether the 1925
Geneva Gas Protocol would, for instance include tear gas and other non-lethal gases’.).
37 See Elements of Crimes, Art. 8(2)(c)(vii) and (viii); Elements of Crimes adopted as part of amend-
ment, Art. 8(2)(e)(viii) and (vix) (emphasis added).
38 See e.g. Y. Askar, Implementing International Humanitarian Law, From the Ad Hoc Tribunals to a
Permanent International Criminal Court (New York: Routledge, 2004), at 189 (‘Even [though]
the use of biological and chemical [but not nuclear] weapons is not explicitly prohibited :::
the ICC can interpret the provision of banning the use of poisonous or other gases to cover
such weapons’).
39 See Klamberg, supra note 33 (‘It is generally understood that the wording ‘‘asphyxiating, poi-
sonous or other gases, and all analogous liquids, materials or devices’’ ::: includes chemical
weapons ::: . Even though biological weapons are covered by the Geneva Protocol of 17 June
1925, it is doubtful that the present provision covers these weapons’); see also A. Cassese,
International Criminal Law (Oxford: OUP 2003), at 60; Dormann, supra note 35, at 346.
40 See e.g. Boot, supra note 36, at 597 (‘States negotiating the Rome Statute did not include weap-
ons of mass destruction in Article 8(2)(b) ::: ’). See also Proposal of Mexico, Amendment to article
8 of the Rome Statute of the International Criminal Court regarding the use of Nuclear Weapons,
ICC-ASP/8/43/Add.1 (‘the result of the difficult negotiations that took place before and during
the Rome Conference, [is that] weapons of mass destruction, including nuclear weapons,
were excluded’).
1228 JICJ 8 (2010), 1219^1243

were intended to come under the provision in Article 8(2)(b)(xx) that criminal-
izes the use of weapons ‘which are of a nature to cause superfluous injury or
unnecessary suffering or which are inherently indiscriminate’. The provision
gives the Court jurisdiction to try those who use such weapons only if ‘such
weapons ::: are the subject of a comprehensive prohibition’ and are ‘included
in an annex to this Statute’ and is thus not currently useable by the Court. No
such annex could be agreed to in Rome,41 and none was added in Kampala.
Since there is at present no annex, the correct view appears to be that chem-
ical and biological weapons are not included in Article 8 as it now stands in
relation to international armed conflicts, and therefore, that the amendment
does not outlaw those same weapons in the context of non-international ones.

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Indeed, those who would argue that existing language could cover such
modern weapons, may (ironically, perhaps) find it more difficult to do so in light
of the amendment. Since Belgium’s earlier amendment-proposals sought to add
these other weapons ç first through the annex, and later through additional
language in Article 8 itself ç but were later dropped, the inference is that
states did not understand the current language of the amendment to deal with
these weapons. There is nothing to suggest that states opposed the broader
proposals as unnecessary in light of the narrower one; instead, Belgium’s
explanation is that they were dropped due to lack of consensus-support.42

2. Armed Conflict versus Law Enforcement

One of the most controversial parts of the Article 8 amendment was the exten-
sion of ICC jurisdiction over the war crime of using ‘bullets that expand or
flatten in the human body’ to non-international conflicts. According to the
ICRC, state practice establishes the prohibition on such bullets as a norm of
customary international law applicable in both international and
non-international armed conflicts.43 But some states use these bullets for

41 There was significant disagreement at the Rome Conference over nuclear weapons. Some dele-
gations insisted on the inclusion of nuclear weapons in the list of prohibited weapons. Other
states argued that nuclear weapons could not be included because such weapons are not un-
ambiguously prohibited under customary international law. Other delegations then insisted
that it was unfair or misleading to exclude nuclear weapons ç ‘the rich man’s weapons of
mass destruction’ ç but to include biological and chemical weapons ç ‘the poor man’s’ version
of what is prohibited. The issue was therefore left to be resolved at a later stage through the
agreement on the creation of the annex referred to in Art. 8(2)(b)(xx); but no such agreement
has been reached. Cf. Boot, supra note 36, at 597.
42 Supra note 16. The use of such weapons in certain contexts may however constitute another
war crime if certain consequences occur. For example, attacks intentionally directed against
the civilian population are war crimes under Art. 8(2)(b)(i) or Art. 8(2)(e)(i). If anti-personnel
mines or biological weapons are used in such an attack, this could be a crime under the
Statute.
43 See ICRC Customary Law Study of International Humanitarian Law (ICRC Study), Rules 70 and
77, available online at http://www.icrc.org/customary-ihl/eng/docs/v1 (visited 10 August
2010). For a possible exception regarding the United States, see ICRC Study, available online at
http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter25_rule77 (visited 10 August 2010).
Cf. Statement by Dive, supra note 23.
 Expanding Jurisdiction over War Crimes 1229

domestic law-enforcement purposes, for instance where it is necessary to

confront an armed person in a crowded area, ensuring that ‘one-shot’ means
‘one-kill’ while limiting the risk of third-party injury.44 The London police, for
instance, chose to use dum-dum bullets in 2005 to shoot a suspected terrorist
spotted on the platform of a populated train station.45 States that were
concerned that the amendment might criminalize these practices were
reminded in Kampala that war crimes can only be committed in a situation of
‘armed conflict’ and that situations falling short of an armed conflict, such as
law-enforcement activities, were outside the ICC’s jurisdiction. These situations
would be left to human rights law and domestic criminal law, and Article 8
would not apply.46 The resolution adopting the amendment, indeed, specifical-

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ly included a paragraph clarifying that:
the ::: elements of the crimes ::: specify that the conduct took place in the context of and
was associated with an armed conflict, which consequently confirm the exclusion from the
Court’s jurisdiction of law enforcement situations.47

But where will the ICC draw the line?

An initial marker is set down by the requirement in the ICC Statute that crimes
be of sufficient gravity before the Court may be allowed to deal with them. The
Court’s jurisdiction is defined in the Statute’s preamble as relating to‘the most ser-
ious crimes of concern to the international community as a whole’, and under
Article17 of the Statute the judges are to reject as inadmissible crimes ‘not of suffi-
cient gravity’. The factors that are used to define sufficient gravity have not yet
been fully articulated by the Court, but according to the Prosecutor they include
the number of victims and the impact of the crimes.48

44 See e.g. the statement of the Filipino representative, supra part 3.

45 See A. Fesco, ‘Officers fired ‘‘dumdum’’ bullets to ensure Jean Charles de Menezes died instantly’,
The Times, 16 October 2007, available online at http://www.timesonline.co.uk/tol/news/uk/
crime/article2666300.ece (visited 10 September 2010).
46 See Amnesty Statement, supra note 23.
47 Amendment Resolution, supra note 1 (emphasis added). Cf. Amnesty Statement, supra note 23
(‘the Assembly of State Parties does not have the competence to confirm the exclusion from
the International Criminal Court’s jurisdiction of law enforcement situations through a simple
resolution. Therefore, the clarification of the International Criminal Court’s jurisdiction regard-
ing ‘‘law enforcement situations’’ ::: should not be understood as modifying the threshold
standards which govern the material field of application of customary and conventional inter-
national humanitarian law’).
48 Statement by Luis Moreno-Ocampo, Prosecutor of the ICC, Informal meeting of Legal Advisors
to Ministries of Foreign Affairs, New York, ICC-02/04-01/05-67, 24 October 2005, at 6. See also
Letter from the Office of the Prosecutor concerning Communication regarding Situation in
Iraq, 9 February 2006, available online at http://www.iccnow.org/documents/OTP_letter_to_sen
ders_re_Iraq_9_February_2006.pdf (OTP Letter on Iraq) (visited 10 September 2010), at 8 (‘For war
crimes, a specific gravity threshold is set down in Article 8(1), which states that ‘‘the Court
shall have jurisdiction in respect of war crimes in particular when committed as part of a
plan or policy or as part of a large-scale commission of such crimes’’. This threshold is not an
element of the crime, and the words ‘‘in particular’’ suggest that this is not a strict requirement.
It does, however, provide ::: guidance that the Court is intended to focus on situations meeting
these requirements’).
1230 JICJ 8 (2010), 1219^1243

Once the gravity threshold has been met, jurisdiction over war crimes will
also depend on whether a situation constitutes an ‘armed conflict’. Article 8
itself specifies that it:
does not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.49

For crimes enumerated in Article 8(2)(e) of the Statute (including prohibited

weapons), Article 8(2)(f) adds that:
it applies to armed conflicts that take place in the territory of a State when there is pro-
tracted armed conflict between governmental authorities and organized armed groups or
between such groups.50

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In other words, for the ICC provisions on prohibited weapons to apply, acts of
violence must meet three basic requirements, one temporal and two qualita-
tive: (i) the violence must be ‘protracted’ rather than ‘isolated and sporadic’;51
(ii) it must take place between ‘organized armed groups’52 and (iii) more gener-
ally, it must reach a certain level of intensity.53 This definition is consistent
with the definition of ‘non-international armed conflict’ used in the ICTY’s
jurisprudence.54
Typical non-international armed conflicts might be civil wars and revolu-
tions, situations far removed from, for instance, local police quelling a demon-
stration. Examples of non-international armed conflicts, according to the
ICRC, include the situation in Afghanistan following the Russian withdrawal,
Sierra Leone, Sri Lanka, Liberia, Lebanon in the 1980s, Chechnya, Congo,
Rwanda and Somalia in the 1990s.55 Other situations have generated some
controversy. For instance, opinions differ as to whether or to what extent the
United States’s ‘war’ against Al Qaeda is an armed conflict versus a criminal
law-enforcement issue.56

49 Art. 8(f) ICCSt.

50 See Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges against
Jean-Pierre Bemba Gombo, Bemba Gombo (ICC 01/05^01/08), Pre-Trial Chamber, 15 June 2009
(Bemba Confirmation Decision), x 231.
51 This additional requirement of ‘protracted’ violence outlined in Art. 8(2)(f) only explicitly
applies to the war crimes listed in Art. 8(2)(e) ç as amended at the Kampala conference. It is
not explicitly mentioned in Art. 8(2)(d) as applying to the crimes listed in Art. 8(2)(c). But see
Bemba Confirmation Decision, x 235 (‘The argument can be raised as to whether this require-
ment may nevertheless be applied also in the context of article 8(2)(d) of the Statute :::’).
52 The ICTY has identified five factors indicative of the organization of armed groups. See
Judgment, Bos› koski and Tarc› ulovski (IT-04-82), Trial Chamber, 10 July 2008 (Bos› koski and
Tarc› ulovski Trial Judgment).
53 See Bemba Confirmation Decision, supra note 50, x 225. See also discussion on gravity require-
ment, text accompanying supra note 48.
54 Tadic¤ , supra note 5, x 70. See also Judgment, Rutaganda (ICTR-96-3), Trial Chamber, 6 December
1999, x 91.
55 See ICRC Unit for Relations with Armed and Security Forces, The Law of Armed Conflict:
Non-International Armed Conflict, June 2002, available online at http://www.icrc.org/Web/eng/
siteeng0.nsf/htmlall/5P8EX4/$File/LAW10_final.pdf (visited 10 September 2010).
56 See e.g. N. Balendra, ‘Defining Armed Conflict’, 29 Cardozo Law Review (2008) 2461.
 Expanding Jurisdiction over War Crimes 1231

The ICC has already confirmed that ‘there are substantial grounds to believe’
that there was an armed conflict in the Democratic Republic of Congo, the
Central African Republic and in Sudan at times and in places relevant to
charges filed against accused who have appeared before it.57 In so doing it has
found that, for instance, a five-month conflict qualified as being ‘protracted’.58
It found that the requirement of organization for an armed group means that
the group should ‘have the ability to plan and carry out military operations
for a prolonged period of time’ and that the group ‘must be under responsible
command’.59 And it has reasoned that sufficient intensity exists where violence
had erupted ‘throughout the country’60 and, in another case, where ‘many
armed attacks’ took place throughout a six-month period ‘causing many

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victims’ and causing the Security Council to pass a resolution on the violence
under Chapter VII of the UN Charter.61 In addition, the Court has not declared
any of the cases that have come before it to be inadmissible for lack of sufficient
gravity.62
The ICC jurisprudence to date has concerned relatively clear-cut armed
conflict situations. Although the issue of whether the relevant conflict was
international or not has been disputed before the ICC,63 and both types of
armed conflict have been found to exist by the various Pre-Trial Chambers,64
none of the situations before the Court have involved a dispute by the prosecu-
tion and defence as to whether there was at least a non-international armed
conflict on the relevant territory. There are, however, factual scenarios that
come closer to the line between law enforcement and armed conflict.
One such scenario was dealt with by the ICTY in the Bos› koski and Tarc› ulovski
case. The Trial Chamber found that there was an internal armed conflict in
Macedonia in 2001 involving Macedonian government forces (both army and
police) and the ‘National Liberation Army’ (NLA), a group of 2000^2500 fight-
ers.65 The Chamber rejected the defence argument that the violence was
merely a law-enforcement response to an internal terrorist threat.66 But it

57 See e.g. Bemba Confirmation Decision, supra note 50, x 246; Decision on the Confirmation of
Charges, Abu Garda (ICC-02/05-02/09-243-Red), Pre-Trial Chamber, 8 February 2010, xx 56^57.
58 Bemba Confirmation Decision, ibid., x 235.
59 Ibid., at xx 233^234.
60 Ibid., at x 243.
61 Decision on the Confirmation of Charges, Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, 29
January 2007, x 235.
62 Cf. OTP Letter on Iraq, supra note 48.
63 Lubanga, supra note 61, at x 200.
64 The conflict in the Central African Republic was characterized as non-international by
Pre-Trial Chamber II in the Bemba case, whereas Pre-Trial Chamber I has decided at the con-
firmation stage that the conflict in the Democratic Republic of Congo was international. See
also Decision on the Confirmation of Charges, Katanga and Chui (ICC-01/04-01/07), Pre-Trial
Chamber I, 30 September 2008, x 240.
65 Bos› koski and Tarc› ulovski Trial Judgment, supra note 52.
66 Ibid., at xx 208^249. See also Brief of Johan Tarc› ulovski (IT-04-82-A), Appeals Chamber, 12
January 2009, x 64. Despite the relevance of this defence challenge to the question of jurisdic-
tion, both the Trial and Appeals Chambers refused to entertain it at an interlocutory stage,
resolving that it was a factual issue to be determined at the final judgment stage. At the ICC
1232 JICJ 8 (2010), 1219^1243

recognized that this was a close call, as there were several factors militating
against a finding that the violence constituted an internal ‘armed conflict’. For
instance, the Chamber noted that there was a relatively low number of fatal-
ities (the highest estimates put the total number of people killed during 2001
as a result of the armed clashes at 168), and that material damage to property
and housing was of a relatively small scale.67 The Chamber reasoned that
‘these low figures may ::: suggest that the operations of the police and army
were more directed to law enforcement’.68 It also noted that ‘there is some
evidence which suggests that the object of the operation was law enforcement
ç to locate and arrest or in some other way deal with NLA members, also
described as ‘‘terrorists’’, in the village’.69 It ultimately concluded, however,

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that ‘[o]ther factors ::: demonstrate that the operation was not solely or
substantially one of law enforcement’70 and that the ‘totality of the evidence’
justified a finding that the violence rose to the level of armed conflict.71 The
conclusion and reasoning of the Trial Chamber on this point was later upheld
on appeal.72 In the words of one commentator, the ICTY’s decision in this case
‘bring[s] up significant questions regarding the fine line between ordinary
criminal acts and war crimes, particularly in the context of an ill-defined,
irregular conflict whose categorization fluctuates between counterterrorism,
counterinsurgency, or regular police work’.73
The ICTY decision in Bos› koski and Tarc› ulovski suggests that the ICC may yet
have to deal with the scope of the ‘law enforcement exception’ in future
situations that come before it. The relatively high threshold set for a finding of
‘armed conflict’ in the ICC’s war crimes jurisprudence to date suggests,
however, that the Court will not easily conclude that the requisite intensity
and organization for an armed conflict has been reached. Moreover, since the
ICC’s mandate is to try perpetrators of the ‘most serious crimes of concern to
the international community as a whole’ ç with ‘gravity’ being an explicit
admissibility threshold for the Court’s exercise of jurisdiction in any case ç
domestic law-enforcement measures are likely to remain untouched by the
amendment, with the possible exception of those that may arise in the context
of a broader armed conflict.

the judges have dealt with it as a threshold question to be addressed at the confirmation stage,
however.
67 Bos› koski and Tarc› ulovski Trial Judgment, supra note 52, xx 239 and 244.
68 Ibid., at x 244 (emphasis added).
69 Ibid., at x 571 (emphasis added).
70 Ibid. See also ibid., at x 572.
71 The Chamber also analysed the ‘protracted’ violence requirement as a sub-element of the ‘inten-
sity’ requirement and concluded that terrorist acts may constitute ‘protracted armed violence’
as long as they were not ‘perpetrated in isolation’. Ibid., at x 185. See also Judgment, Akayesu
(ICTR-96-4-T), Trial Chamber, 2 September 1998, x 620.
72 Judgment, Bos› koski and Tarc› ulovski (IT-04-82-A), Appeals Chamber, 19 May 2010, x 21.
73 See J. Thorlin, ‘Dershowitz Seeks to Distinguish Crimes in ICTY Appeal’, Harvard National
Security Journal, 10 November 2009, available online at http://www.harvardnsj.com/2009/11/
dershowitz-seeks-to-distinguish-crimes-in-icty-appeal/ (visited 15 September 2010).
 Expanding Jurisdiction over War Crimes 1233

3. Mens rea Requirement for Prohibited Bullets

While all three paragraphs of the amendment to Article 8 require that the
perpetrator ‘was aware of factual circumstances that established the existence
of an armed conflict’,74 the prohibition on expanding bullets is the only one
that prescribes an additional mens rea requirement relating to the suffering
that the weapon causes. As is the case under Article 8(2)(b)(xix) in internation-
al armed conflicts, under the amendment the use of expanding or flattening
bullets in internal armed conflicts is prosecutable only if:
[t]he perpetrator was aware that the nature of the bullets was such that their employment
would uselessly aggravate suffering or the wounding effect.75

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This added mens rea requirement was highlighted in Kampala to reassure
states that were concerned that the amendment would encroach upon the use
of such weapons in circumstances such as hostage situations or other contexts
in which these bullets present a law-enforcement advantage.76
But what exactly will the ICC Prosecutor need to prove to satisfy this mens
rea requirement?

(a) What does uselessly mean?

An initial ambiguity arises from the term ‘uselessly aggravate suffering or the
wounding effect’. The rather strange phrasing comes from the St. Petersburg
Declaration of 1868, which is considered to be a reflection of customary inter-
national law.77 Although many other sources of IHL use the more intuitive
language ‘unnecessary suffering’, this was presumably not used because it
reflects the language of Additional Protocol I to the Geneva Conventions,
which not all states have ratified. According to the ICRC, however, there is no
meaningful distinction between the two phrases.78
A second issue, of course, is how the Court will define ‘uselessly’. The
introduction to the Elements of Crimes states that ‘[w]ith respect to mental
elements ::: involving value judgement, such as those using the terms ‘‘inhu-
mane’’ or ‘‘severe’’, it is not necessary that the perpetrator personally completed
a particular value judgement, unless otherwise indicated’. This means that,

74 The Elements of Crimes for Art. 8 specify, however, that ‘[t]here is no requirement for a legal
evaluation by the perpetrator as to the existence of an armed conflict or its character’.
75 See Amendment Resolution, supra note 1. This mens rea requirement makes the use of these
prohibited weapons narrower than the criminalization of these acts in other international con-
texts. The UN panels for East Timor, for instance, could try a person for ‘[e]mploying bullets
which expand or flatten easily in the human body’, without explicitly being required to make
a finding regarding their intent.
76 See supra Part 4.A.2.
77 See e.g. Speech by Jakob Kellenberger, President of the ICRC, International Conference on IHL
dedicated to the 140th Anniversary of the 1868 St. Petersburg Declaration, St. Petersburg, 24
November 2008, available online at http://www.icrc.org/web/eng/siteeng0.nsf/html/st-
petersburg-declaration-281108 (visited 15 September 2010).
78 Statement by ICRC representative at the Kampala Conference.
1234 JICJ 8 (2010), 1219^1243

for instance, while the perpetrator would need to be aware of the facts estab-
lishing ‘severity’, he need not know that these facts meet the legal test for it.79
It also means that an erroneous appreciation of the facts would open up a de-
fence of mistake of fact as it would negate the requisite mens rea element of
the crime.80 These principles are likely to apply equally to the Court’s assess-
ment of whether the perpetrator was aware that the bullets would ‘uselessly’
aggravate suffering.

(b) Awareness, knowledge or intent?

The mens rea element of the newly-added crime concerning dum-dum bullets is

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that the perpetrator was ‘aware’ of the suffering or wounding that would be
caused by their use. As noted above,81 however, the resolution adopting the
amendment was specifically changed during the Kampala conference, so that
instead of referring to a requirement that the perpetrator be ‘aware’ of the
suffering or wounding effect, the resolution stated the requirement that the
perpetrator employ the bullets ‘to uselessly aggravate suffering or ::: wounding’.
This change was presumably made to allay states’ fears that the amendment
would be applied to situations that in their view should not be criminalized. If
this change of language had been mimicked in the language of the amendment
itself or in the Elements, it would indeed have made the Court’s jurisdiction
narrower as it, in effect, makes the use of the bullets criminal only where
they are employed with intent to cause useless suffering or aggravated wound-
ing rather than just awareness that such consequences would result. But the
change in language was limited to the resolution and therefore appears to be
little more than window dressing. Even assuming that the ICC judges decide
to treat the Kampala resolution as part of the travaux pre¤paratoires of the
amended Statute,82 such preparatory documents are to be consulted only if
the primary documents defining the crimes ç in the first place, the Statute,
but also the Elements83 ç are unclear and the travaux can serve as an
interpretative guide. In this case the Elements clearly state that the mens rea
standard is ‘awareness’, and therefore the resolution that says otherwise will
likely be disregarded.
Another question regarding the mens rea under the amendment concerns
the relationship between, on the one hand, the Elements’ requirement that the

79 See also D. Piragoff and D. Robinson, ‘A rticle 30, Mental Element’, in O. Triffterer (ed.),
Commentary on the Rome Statute, Observers’ Notes, Article by Article (2nd edn., Nomos Verlag,
2008) 853. The Elements of Crimes also suggest that ‘[a]n evaluation of that value judgement
must be based on the requisite information available to the perpetrator at the time’.
International Criminal Court, Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000)
(‘Elements of Crimes’), note 36.
80 See Triffterer, ibid., at 861; Art. 32 ICCSt.
81 See text accompanying supra note 28.
82 It is not clear that the resolution falls within the meaning of travaux pre¤paratoires as used in the
Vienna Convention on the Law of Treaties, Art. 32.
83 See Art. 21 ICCSt.
 Expanding Jurisdiction over War Crimes 1235

perpetrator ‘was aware’ and, on the other hand, Article 30 of the Statute.
Article 30 provides that the mens rea for a crime in the Statute should be
‘intent’ and ‘knowledge’ unless ‘otherwise provided’. Since it is ‘otherwise
provided’ in the Elements, it should be the ‘was aware’ standard that governs.84
The next question is whether the phrase ‘was aware’ means the same as
‘knew’? Article 30 of the ICC Statute provides that knowledge means ‘awareness
that a circumstance exists or a consequence will occur in the ordinary course
of events’. This appears to conflate knowledge and awareness as a mens rea
requirement for crimes under the Statute.85 Moreover, one conference delegate
in Kampala expressed the view in informal consultations that since every use
of a dum-dum bullet necessarily creates useless suffering, the awareness

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requirement should automatically be satisfied. In the view of the delegate ç
at least where the perpetrator had used this type of bullet on one or more
prior occasions ç he or she should be presumed to be aware that it causes
excessive suffering, essentially shifting the burden of proof to him to show
that he or she was not aware of the nature of the bullets he was using or
their harmful effects. Under such an approach, a shooter would not derive
much protection from the mens rea requirement since it would not be neces-
sary to prove what he, subjectively, knew or was thinking at the time that he
fired.
This objective type of interpretation of the mens rea requirement for using
dum-dum bullets seems unlikely, however. First, any interpretation that goes
as far as burden-shifting in relation to an element of the crime may run afoul
of the presumption of innocence guaranteed in Article 61 of the Statute.
Moreover, any objectivization of the test seems precluded by the Statute. The
element of the crime requires that the perpetrator ‘was aware’, which ç even
if it means the same as ‘knew’ ç does not mean the same as ‘should have
known’, a formulation used elsewhere the Statute.86 A subjective
awareness-standard is likely to be adopted, placing a higher bar for the
Prosecution to surmount.87
Ironically, however, even a subjective awareness test for prohibited bullets
may end up being a less stringent mens rea requirement than the one that
may apply to the other prohibited weapons addressed in the amendment. This

84 Arguments by scholars that ‘otherwise provided’ in Art. 30 cannot refer to Elements but only to
the Statute were rejected in the Bemba case, in line with the view of a number of other scholars.
Bemba Confirmation Decision, supra note 50, xx 136, 353. See also K.J. Heller, ‘Mistake of Legal
Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis’, 6 Journal
of International Criminal Justice (2008), at 419.
85 See Triffterer, supra note 79, at 861 (suggesting that the Statute conflates the concepts of aware-
ness and knowledge, but noting that awareness may be a question of degree, so that suspicion
amounting to wilful blindness ç ‘tantamount to actual knowledge’ ç may also be covered).
86 See e.g. Art. 28(a)(1) ICCSt.
87 The bar may be more difficult to surmount in countries that do not have detailed military man-
uals and regular training and thus where soldiers may not have extensive technical know-
ledge. Moreover, in non-international armed conflict, where at least one side of fighting is
done by a guerilla group or other non-governmental entity, a lack of technical knowledge may
be even more likely.
1236 JICJ 8 (2010), 1219^1243

is because of Article 30 of the Statute, which provides that, unless the Statute
or Elements say otherwise, the material elements of any crime must be com-
mitted with intent and knowledge. Since there is no explicit mens rea standard
set out in Article 8 or the amendment in relation to other weapons, ICC
judges may in the future attach the default ‘intent and knowledge’ requirement
to these crimes, thereby raising the Prosecution bar even higher where these
weapons are concerned.
Ultimately, it remains to be seen how the ICC judges ç who have yet to rule
on any charges for prohibited-weapons crimes ç will apply the mens rea elem-
ent of the crimes covered by the amendment if and when such crimes are
charged by the Prosecutor. The higher they set the bar, the further the ICC’s

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war crimes law departs from the prohibition on these weapons under custom-
ary international law,88 and the more favourable the law will be to future
defendants.

B. Is the Amendment Modest or Simply Symbolic?

Although certain states were concerned about the expansion of the Court’s jur-
isdiction over the three categories of weapons that are the subject of the
amendment, in particular, its possible encroachment into law-enforcement ter-
rain, commentators have opined that the entire amendment-exercise is purely
symbolic because the weapons at issue are rarely, if ever, used in modern war-
fare and have never been the subject of a prosecution before the ICC or the
ICTY.
The amendments originally proposed by Belgium concerned weapons that
have been of genuine concern in recent wars, such as blinding laser weapons,
cluster munitions and anti-personnel mines. And yet these are the amend-
ments that were dropped. Schabas has argued that, as a result:89
Far from signaling an accomplishment of the Statute, and a manifestation of progressive de-
velopment of the law of armed conflict ::: the Belgian amendment does little more than
highlight embarrassing shortcomings of the Rome Statute in this respect ::: . Those who
congratulate the Review Conference ::: for extending the prohibition on certain archaic
weapons to non-international armed conflict must be reminded of the truly dramatic failure
of the Rome Statute to incorporate provisions that are meaningful and relevant to modern
armed conflict. As things now stand, nineteenth century technology is governed by the
Rome Statute, but twenty-first century technology is ignored.

This proposition is difficult to argue with. Indeed, back at the Rome

Conference, various delegations argued strongly that the prohibited-weapons
provisions in the ICC Statute needed to include the weapons that are most dan-
gerous in modern warfare, including chemical weapons, mines and nuclear

88 See text accompanying supra note 43.

89 W. Schabas, ‘The ICC Review Conference: Kampala 2010: Prohibited Weapons and the Belgian
Amendment: Symbolic, but of What?’, 22 May 2010, available online at http://iccreviewconfer-
ence.blogspot.com/:::/prohibited-weapons-and-belgian.html (visited 20 August 2010).
 Expanding Jurisdiction over War Crimes 1237

weapons. Noting that Article 8 did not refer to these weapons, New Zealand said it
would be ‘inconsistent with the principles of international humanitarian law’ to
limit the scope of the Statute ‘to events that involve conventional weapons
only’.90 Similarly, the delegate from Jordan said he‘would find it hard to explain to
anyone why bullets which expanded or flattened were prohibited while nuclear
weapons and laser guns were not’.91 The difficulty expressed by Jordan remains
an issue today, despite the welcome fact that expanding bullets and certain con-
ventional gases are now prosecutable under broader circumstances by the Court.

5. Article 8 Amendment as a Procedural Precedent

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Aside from the modest substantive contribution of the Article 8 amendment to
the development of IHL, the amendment serves as a procedural precedent in
two respects. First, its adoption in Kampala set an example as regards the ICC
Statute’s provisions on the entry into force of amendments. Second, and more
broadly, the process for building consensus for the amendment provides a
good model for future efforts to alter the ICC Statute.
In addition to the ambiguities about the substance of the Article 8 amend-
ment discussed in the previous part, there was also ambiguity about the pro-
cedure for its entry into force. The question was whether the amendment
would be governed by Article 121(4) or 121(5) of the Statute. Article 121(5)
applies to ‘[a]ny amendment to articles 5, 6, 7 and 8 of [the] Statute’ whereas
Article 121(4) is a residual provision applying to any amendment ‘[e]xcept as
provided in paragraph 5’. The choice was significant: an amendment adopted
under Article 121(4) enters into force for all States Parties once seven-eighths
have ratified it; until then it does not bind any State Party. An amendment
under Article 121(5) enters into force for those States Parties that have ac-
cepted the amendment one year after the deposit of their instruments of ratifi-
cation. In other words, the Article 121(4) procedure potentially binds all States
Parties, but it could take ‘200 years’92 for the threshold to be reached. The
Article 121(5) procedure allows an amendment to become effective beginning
with the very first ratification, but it offers States Parties a way out.
The question of the procedure for entry into force was also relevant to the crime
of aggression amendment. Indeed, the first few sessions of the Working Group on
the Crime of Aggression were dominated by the debate on Article 121. It was for
this reason that the procedure for entry into force for the Article 8 amendment
was held over to the plenary.93 The intention was to wait for the outcome of the

90 See International Law Association Report,The Hague Conference (2010), International Criminal
Court, available online at www.ila-hq.org/download:::/CCECC02B-7756-413D-A20FC18
C42833EB3, at 6 (visited 20 August 2010).
91 See UN Doc. A/CONF.183/C.1/SR.34, 11 July 1998, available online at http://untreaty.un.org/cod/
diplomaticconferences/icc-1998/docs/english/vol2/a_conf_183_c1_sr34.pdf, x 80 (visited 10
September 2010).
92 Quotation from head of a delegation at the Kampala Conference.
93 Supra notes 26 and 30.
1238 JICJ 8 (2010), 1219^1243

debate on the crime of aggression, but it soon became apparent that this debate
would not be concluded (if at all) until the very last hours of the Review
Conference. The decision to adopt the amendment to Article 8 pursuant to
Article 121(5) of the Statute therefore preceded ç and perhaps precipitated ç
the decision 24 hours later to adopt the crime of aggression amendment under
the same provision.
The adoption of the Article 8 amendment under the Article 121(5) procedure
should have been straightforward since that procedure explicitly applies to
any amendment ‘to articles 5, 6, 7 and 8’. The ambiguity arises with the
second sentence of Article 121(5): ‘In respect of a State Party which has not
accepted the amendment, the Court shall not exercise its jurisdiction regarding

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a crime covered by the amendment when committed by that State Party’s
nationals or on its territory.’
States have attributed two very different meanings to this sentence: (i) the
so-called ‘positive understanding’ according to which the Statute does not
prevent the Court from exercising jurisdiction in respect of an act falling
under amended Article 8 committed on the territory of a State Party that has
accepted the amendment (territorial state) regardless of whether the alleged
perpetrator’s state of nationality has accepted it; or (ii) the so-called ‘negative
understanding’, more clearly consistent with the wording of the sentence, that
the Statute prevents the Court from exercising jurisdiction over such an act
committed by the national of any state that has not accepted the amendment,
including non-State Parties (state of nationality).94 In other words, the positive
understanding requires only that the territorial state has agreed to the amend-
ment to Article 8 whereas the negative understanding requires that both the
territorial state and the state of nationality have agreed to the amendment.
Although delegates expressed a preference for one interpretation over the
other during negotiations on the aggression amendment in the lead-up to the
Review Conference95 and during the conference itself, it was never entirely
clear which understanding ultimately prevailed in Kampala. In the context of
the aggression amendment, the wording adopted allows the Court to exercise
jurisdiction when an act of aggression has allegedly been committed by a
national of a State Party, unless that State Party has previously opted out.96

94 This was discussed in the context of the crime of aggression: Conference Room Paper on the
Crime of Aggression. RC/WGCA/1, 25 May 2010, Annex IIII, p. 7, available online at http://
www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGCA-1-ENG.pdf (visited 31 August 2010).
95 Report of the Working Group on the Review Conference, Annex II, Official Records of the Assembly
of States Parties to the Rome Statute of the International Criminal Court. ICC-ASP/8/20/Add.1,
Resumed Eighth Session, 22^25 March 2010, at 42, 44 (informal roll call vote on four options
regarding state consent and the jurisdictional filter for the aggression amendment);
Non-Paper by the Chairman on Outstanding Issues Regarding the Conditions for the Exercise of
Jurisdiction, Appendix I, Official Records of the Assembly of States Parties to the Rome Statute of
the International Criminal Court, ICC-ASP/8/20/Add.1, Resumed Eighth Session, 22^25 March
2010, at 52.
96 Art. 15bis, paragraph 4, RC/Res.6, 28 June 2010: ‘The Court may, in accordance with article 12,
exercise jurisdiction over a crime of aggression, arising from an act of aggression committed
by a State Party, unless that State Party has previously declared that it does not accept such
 Expanding Jurisdiction over War Crimes 1239

This suggests the alleged aggressor state (state of nationality) needs to have
accepted the amendment, but the acceptance of the alleged victim state (terri-
torial state) is immaterial.97
After Kampala, there are apparently two questions left unresolved. First, for
the Court to have jurisdiction over an act contained in an amendment to the
Statute, is it sufficient for either the territorial state or the state of nationality
to have accepted an amendment? Second, does the state of nationality have to
be a State Party to the Statute? Both issues were debated extensively with
respect to the crime of aggression, but were not discussed in the specific
context of the war crimes in amended Article 8.
As regards the amendment to Article 8, it is clear that the Court can exercise
jurisdiction where both the state of nationality and the territorial state are

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States Parties that have accepted the amendment. What remains ambiguous
after Kampala is whether the Court would be able to exercise jurisdiction
when the newly added crime is committed either (i) on the territory of a State
Party that has not accepted the amendment or (ii) by a national of a State
Party that has not accepted the amendment. The delegates at the Review
Conference agreed that the dilemma over the positive or negative understand-
ing of Article 121(5) would have to be resolved in the same way for the crimes
covered by amended Article 8 as for the crime of aggression.98 It is hoped
that, in order to avoid further confusion, the ICC judges will therefore adopt a
uniform interpretation of the scope of the Court’s jurisdiction as a result of
the two amendments if and when the issue comes before them.
The jurisdictional regime with respect to nationals of non-States Parties is
equally murky. Nationals of non-States Parties may be prosecuted for crimes
currently included in the ICC Statute if these crimes occur on a State Party’s
territory, because jurisdiction can be based either on territory or nationality.
In other words, for crimes currently covered by the Statute it is sufficient for
the alleged victim state to be a State Party, regardless of whether the alleged
perpetrator’s state of nationality is a party, or vice versa.
The situation would appear to be different with respect to any crime added
to the Statute via an amendment if the negative understanding of Article
121(5) prevails. The second paragraph of the preamble to the resolution adopt-
ing Article 8 militates in favour of the negative understanding applying to
non-States parties.99 As Schabas rightly observes, the strange result would be

jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration
may be effected at any time and shall be considered by the State Party within three years.’
97 See C. Kre and L. von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’,
in this issue of the Journal.
98 Discussions on Art. 121(5) in the Working Group dealing with Art. 8 were deferred to the
plenary and were supposed to be subject to the outcome on the aggression amendment; see
text accompanying supra notes 26 and 30.
99 Preambular paragraph 2 of RC/Res.5 reads:

::: in respect of a State Party which has not accepted the amendment, the Court shall
not exercise its jurisdiction regarding the crime covered by the amendment when
committed by that State Party’s nationals or on its territory, and confirming
1240 JICJ 8 (2010), 1219^1243

that nationals of non-States Parties could never be prosecuted for a crime in an

amendment to Articles 5, 6, 7 and 8 although they remain liable for prosecution
for crimes already contained in those Articles.100 More broadly, this means
that, while the Article 121(5) procedure has the advantage of allowing amend-
ments to be adopted immediately on a state-by-state basis (as opposed to the
supermajority requirement of Article 121(4)),101 it would have the distinct dis-
advantage of making crimes introduced or altered by amendments even
harder to prosecute.
Beyond the technical aspects of entry into force, the Article 8 amendment
has set a precedent in terms of how to build consensus to alter the ICC
Statute. Belgium’s strategy is instructive in several respects, and stands in
contrast to the unsuccessful attempt to delete Article 124 of the Statute.102

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First, Belgium crafted an amendment that was limited in its ambition: the
expansion of the Court’s jurisdiction over crimes that already appeared in the
Statute to a new situation. Significantly, Belgium did not combine this amend-
ment with its other more sweeping proposals to include new crimes related to
chemical and biological weapons, anti-personnel mines and blinding lasers.103
Second, Belgium expanded its base of support for the amendment through
bilateral meetings with various governments so that by the time the amend-
ment was considered by the ASP, many delegations were already familiar
with it. Third, to avoid the impression of this being a European project, 18
states representing the various regions of the world signed on as co-sponsors.
Finally, in Kampala, the Belgian representative did not encourage discussion
of the proposal in the Working Group or the plenary, saying that ‘removing
one comma would risk reopening everything’.104 States were, instead, urged
to present their concerns in informal bilateral meetings and consultations.
This approach prevented convoluted discussions of language versions, proced-
ure and punctuation that can so easily undermine a nascent substantive
consensus.
Another positive procedural outcome is that the amendment to Article 8 has
not just modified the Statute, but also created a tool permitting the ASP regu-
larly to examine proposed amendments to the Court’s legal framework. In
November 2009, the ASP decided to establish a Working Group for the purpose
of considering, as from its ninth session in December 2010, amendments to

its understanding that in respect to this amendment the same principle that applies in
respect of a State Party which has not accepted the amendment applies also in respect of
States that are not parties to the Statute (emphasis added).

100 W. Schabas, ‘War Crimes Amendment Negotiations’, The ICC Review Conference: Kampala
2010, 4 June 2010, available online at http://iccreviewconference.blogspot.com/ (visited 20
August 2010). This result will depend on how much weight the judges give to the resolution
when interpreting the amendment to Art. 8.
101 Clark, supra note 12, at 389.
102 Report of the Working Group on other amendments, RC/20 (advance version), annex III, xx 9^11.
103 Supra note 17 and part 4.A.1.
104 G. Dive, 4 June 2010, Working Group on Other Amendments, Kampala.
 Expanding Jurisdiction over War Crimes 1241

the Statute proposed in accordance with Article 121(1) at its eighth session, ‘as
well as any other possible amendments to the Rome Statute and to the Rules of
Procedure and Evidence, with a view to identifying amendments to be adopted
in accordance with the Rome Statute and the Rules of Procedure of the
Assembly of States Parties’.105 The creation of the Working Group makes the
amendment procedure contained in Article 121 more concrete. The topic of
amendments to the Statute will now be a regular agenda item at ASP sessions,
and the Working Group will be able to establish a procedure by which amend-
ments are assessed so that only those that have the potential to be adopted
are given time and attention by the ASP.
The adoption of the amendment to Article 8 has initiated the process and

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the thinking for future action to amend the Statute. Unlike the crime of aggres-
sion amendment, the amendment to Article 8 is straightforward. There are no
requirements for certain majorities and no postponement of final decisions to
a future meeting. It will enter into force for those States Parties that ratify it
one year after the deposit of their instruments of ratification. The simplicity of
the procedure both before and after adoption of the amendment is a good pre-
cedent, which is important because the ability of the ASP to amend the
Statute ensures ‘the continuing evolution of substantive international criminal
law and the role that the ICC Statute plays today in the domestic implementa-
tion of IHL obligations’.106

6. Conclusion
The adoption of the amendment to Article 8 of the ICC Statute at the Kampala
Review Conference was a modest achievement considering what remains to
be done to extend equal protections to civilians and combatants in internation-
al and non-international armed conflicts. The war crimes provisions of the
ICC Statute still reflect the international/non-international dichotomy of
armed conflicts that is rapidly becoming outdated. As Cassese observed
during the preparations for the Rome Conference, in customary international
law ‘there has been a convergence of the two bodies in international law with
the result that internal strife is now governed to a large extent by the rules
and principles which had traditionally only applied to international con-
flicts’.107 The Rome Conference failed fully to embrace this convergence, and
the Kampala Conference has only accepted it in so far as it applies to weapons
crimes that have never in fact been prosecuted at the ICC or at the ICTY.108

105 Review Conference. Resolution ICC-ASP/8/Res.6, 26 November 2009, adopted by consensus

(emphasis added).
106 ICRC Statement at the Eighth Session of the ASP to the ICC, The Hague, November 2009, at 2.
107 Memorandum of 22 March 1996 to the Preparatory Committee for the Establishment of the
International Criminal Court, quoted in Stewart, supra note 3, at 322.
108 For example, launching indiscriminate attacks likely to cause incidental loss of life, injury to
civilians or damage to civilian objects; widespread, long-term and severe damage to the envir-
onment; attacking undefended places which are not military objectives; improper use of
1242 JICJ 8 (2010), 1219^1243

The negotiations in Kampala also left several aspects of the substance of the
amendment unresolved. The scope of the prohibition on the use of gases is un-
clear, but is unlikely to cover riot control agents and chemical and biological
weapons. The inclusion of a specific mens rea requirement for the
prohibited-bullets provisions also requires interpretation by the Court and
may actually have the unintended effect of lowering the mental element
required for this crime as compared to the provisions on gas and poison
which will be subject to ‘default’ mens rea requirement imposed by Article 30
of the Statute. Perhaps most significantly, states displayed concern in
Kampala about whether the amendment could be read to give the Court juris-
diction over law-enforcement activities, and ICTY case law suggests that the

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line between non-justiciable law-enforcement actions and justiciable armed
conflicts can be difficult to discern.
These ambiguities may, however, not prove to be too serious in practice given
the two key prerequisite findings that must be made before the Court can exer-
cise jurisdiction in a war crimes case involving the use of prohibited weapons.
First, the Court is required to conclude that an ‘armed conflict’ of the requisite
intensity and organization has occurred. Second,‘gravity’ is a separate admissi-
bility threshold for the Court’s exercise of jurisdiction in a case. These pre-
requisites mean that domestic law-enforcement measures are likely to remain
untouched by the amendment. The limitation of the Court’s caseload to con-
flicts of a large scale and high intensity may also mean that the use of
riot-control agents and other substances of that nature are simply never dealt
with by the Court.
Confusion over the procedure for adopting amendments also means that
there are lingering ambiguities as to whether the amendment to Article 8 can
give the Court jurisdiction over nationals of States Parties that have not ac-
cepted the amendment or nationals of non-States Parties. The wording of the
second sentence of Article 121(5) gave rise to positive and negative under-
standings that were not fully resolved by the amendments adopted relating
neither to Article 8 nor to the crime of aggression. It will be for the judges to
bring coherence to this aspect of the ICC’s legal framework.
Despite these controversies, the adoption of the Article 8 amendment is un-
doubtedly a cause for optimism. The amendment sends a signal that individ-
uals should be held accountable for using certain prohibited weapons
regardless of the scope of the armed conflict. As the ICRC had stated at an
ASP session prior to the Review Conference, ‘what is inhumane, and conse-
quently proscribed in international armed conflict, cannot but be inhumane
and inadmissible in a non-international armed conflict’.109 Making the weap-
ons provisions consistent is a small step towards a unified approach to IHL

flags and markings; use of human shields; and the use of starvation as a method of warfare
cannot be prosecuted at the ICC for non-international conflicts. D. Willmott, ‘Removing the
Distinction between International and Non-International Armed Conflict in the Rome
Statute of the International Criminal Court’, 8 Melbourne International Law Review (2004) 196.
109 ICRC Statement at the Eighth Session of the ASP to the ICC, The Hague, November 2009, at 2.
 Expanding Jurisdiction over War Crimes 1243

protections, and brings the ICC Statute more in line with developments in cus-
tomary international law. And there is another legacy of the amendment ç
we have learned about the process for altering the ICC Statute. Proposed
amendments should be specific and narrow, attention should be paid to build-
ing consensus bilaterally outside of the ASP sessions and through
co-sponsorship, and informal consultations should take precedence over
discussions in the plenary and Working Group formats. Another amendment
proposal that did not heed these lessons ç the proposal to delete Article
124 ç failed to achieve consensus in Kampala and we are left with a provision
in the ICC Statute that undermines accountability for war crimes.110 The
Article 8 amendment set an important procedural precedent in addition to
making a moderate substantive contribution to the development of IHL.

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110 Art. 124 allows a state, on becoming a party to the Statute, to declare that, for a period of
seven years after the entry into force of this Statute for the state concerned, it does not
accept the jurisdiction of the Court with respect war crimes when a crime is alleged to have
been committed by its nationals or on its territory.
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