Implementation of the ICC Statute in the United Kingdom

Elizabeth Wilmshurst, Implementation of the ICC Statute in the United Kingdom in Roy S. Lee Ed., “State’s Responses to Issues Arising From the ICC Statute” Constitutional, Sovereignty, Judicial Cooperation and Criminal Law”, Transnational Publisher (2005), [147-163]

Personal Notes:

 

Treaties are not self executing in the UK, and it was necessary to legislate before ratifying to ensure that domestic law was adequate to allow treaty obligations to be fulfilled. [147]

 

With no written Constitution, the UK had no need to invoke special procedural mechanisms to override any constitutional provisions. All of the changes to the law that were necessary by virtue of the UK ratif of the RS were made by the Act of Parliament, supplemented in relatively minor respects by delegated legislation. Only one Act of Parliament was needed for the legal changes necessary to the law of England and Wales, and of the Northern Ireland: the International Criminal Court Act 2001. For matters that fall within the devolved responsibility of Scotland, a further Act was passed by the Scottish Parliament, which applies solely to Scotland. [Ibd.]

 

The International Criminal Court Act has the following main purposes: i) to incorporate in the law the offenses set out in the RS; ii) to enable courts and other authorities to meet request for the arrest and surrender of persons wanted by the ICC (part 2); iii) to enable authorities to cooperate with requests for assistance by the ICC of a variety of other kinds, including assistance with investigations (part 3); and iv) to make provision for prisoners convicted by the ICC to serve their sentences in the UK and to provide for enforcement of fines, forfeitures, and reparations ordered by the ICC (part 4). [Abv.]

 

In introducing the bill to the parliament, the government made clear its intention that no British service personnel would ever be brought before the ICC: national authorities would investigate and if necessary to prosecute, any allegation of an offense committed by British troops. [Abv]

 

The Genocide convention 1969 had already been incorporated into the law; article 6 of the RS merely replicates  the offense-creating provisions of that Convention. Grave breaches of the Geneva convention and the first Additional Protocol were offences under domestic law, as were most of the crimes against humanity and offenses within internal armed conflict, although under other names. Another possibility for dealing with the ICC offenses was m in effect, to redraft article 7 and 8 of the Statute using terms and concepts more familiar to national courts. [149]

 

The Act also provides that the courts must interpret the ICC offenses in accordance with any declaration made by the UK when ratifying the RS. The declaration drew attention to the UK’ ‘statements made on ratification of relevant instruments of international law’. These instruments were the first Protocol additional to the Geneva Conventions, the Conventional Weapons Convention, Protocol I to IV to that Convention and the Convention of the Prohibition of the Uses, Stockpiling, Production and Transfer of Anti-Personnel Mines. [150]

 

On sentencing, the Act follow the approach taken by RS: on conviction for an offense, which does not involve murder, the penalty is a term of imprisonment not exceeding 30 years. For crimes involving murder, the penalty is life imprisonment. [151]

 

The identification and Whereabouts of Persons or the location of Items

 

The powers allows a court to be nominated to supervise the taking of a person’s fingerprints or a non-intimate sample, but this may not be done unless other means of identification have been tried and have proved inconclusive and the ICC has, on being notified of this fact, maintained its request…as regard to the location of items, it may, on occasion, be possible to respond to ICC request by administrative means, using police of Customs channels; but where it is necessary to exercise powers of entry, search and seizure, section 33 of the Act allows the exercise of the powers conferred for those purposes in the Police and Criminal Evidence Act 1984. [158]

 

When ICC requests assistance in the taking or production of evidence, section 29 gives powers for a domestic court to be nominated to receive that evidence; the court has the same powers to secure the attendance of witnesses and the production of documents as it has for other proceedings before that court, and it may take sworn evidence. If it is necessary to protect victims, witnesses or the accused, or necessary to protect confidential information, the proceedings may be held in private…section 28 accordingly provides that a person shall not be questioned pursuant to a request from the ICC unless he has consented to be interviewed and has been informed of his right under article 55…section 31 allows for summons and other ICC documents to be personally served on an individual within the country. [159]