Political and Legal Considerations in Sweden relating to the Rome Statute for the International Criminal Court

Håkan Friman, Political and Legal Considerations in Sweden relating to the Rome Statute for the International Criminal Court 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), 121-145

Personal Notes:

 

History has shown that the protection sought by IHL is far from being fulfilled. The culture of impunity for the perpetrators of international crimes prevails to an unacceptable extent. [121]

 

Sweden considered the work to establish a permanent international criminal court as an opportunity to advance the enforcement of IHL and respect for human rights…the work was divided into three different tracks: initially the ratif and implement legis for coop with the Court were considered together. The former issue was eventually fast-tracked and the latter was dealt with separately later. The third tract concerns amendments to Swedish penal law in light of the RS and other developments in international law [121-2]

 

Certain sovereign functions of the state may, under the Constitution, be transferred to a limited extent to the European communities…with respect to transfer of decision making powers to other international organizations other than the EC, a single decision by a qualified majority (five-sixth) is only permissible in emergencies. However, the scope for transfer of judicial or administrative functions by a single decision (and three-fourths majority) is broader as long as the function is not based directly on the Constitution. [123]

 

Sweden adheres to the so-called dualistic principle. This means Swedish prosecutors and courts do not directly apply provisions of international treaties…by transforming treaty provision into domestic, harmonization with domestic law in general can be achieved, and practical problems for national authorities in applying and interpreting the provisions can be avoided. However, there is always a risk that the transformed provisions deviate from the treaty provisions to such an extent that the obligations are not met, particularly if the treaty law in question is continuously developed by treaty organs (ie. European Court of Human Rights). [123-4]

 

The shared treaty-making powers (with the Parliament) as laid down in the Constitution and the dualistic view concerning international treaties have led to a practice in which the government presents proposal for ratification and legislative amendment at the same time in the same Bill to the Parliament. Though not a formal requirement, the Parliament expects that a Ratification Bill includes proposals for amending existing laws…the Ministry of Justice in close cooperation with the Mofa drafted a memorandum on the ratif and the necessary legislation for the cooperation with the Court. [124] … in line with legislative practice, an extensive commentary on the Statute and the proposed legislative amendments was also included in the memorandum. The memorandum does not reflect the view of the government but rather the view of a committee of experts. Upon its submission, the memorandum was remitted to relevant governmental agencies, courts, special interest groups and universities for comments…the responses were positive and all institutions and groups welcomed ratification. [125]

 

Sweden does not have Constitutional Court, but it has Council of Legislation and the Parliamentary Standing Committee of Constitution. The latter rather than the former was involved in the ratification process since the Bill on ratif did not deal with concrete proposals for legislative amendments. [127]

 

An assessment to Swedish criminal procedures shows that it meets the highest international standards of fairness and that the judicial authorities are independent. Hence, the test regarding a willingness and ability ‘to genuinely carry out the investigation or prosecution would be met. [128]… as for immunities, the Monarch, who does not have any executive powers under the Constitution, makes the commission of a crime that falls within jurisdiction of the Court virtually impossible. It was concluded that this immunity did not hinder Sweden from ratifying the Statute without amending the Constitution. [129]…the Swedish constitution entrust the government with power to give pardon. However, the acceptance of enforcement of sentences from the ICC rulings is a voluntary commitment. Thus constitutional compatibility was not an issue that has impacts on ratif of the RS. Additionally, the Swedish government power to give pardon is discretionary so individuals have no rights to pardon. Hence, the request for pardon may be denied with reference to international obligations [132]

 

Sweden has International Legal Assistance in Criminal Matters Act, which is designed to reflect recent development in international legal assistance, and provides for a simple, flexible and comprehensive regulation…the basic premise is that measures that can be taken in a Swedish criminal investigation should also be available in international assistance. Thus foreign requests for specified procedures and participation of certain people are to be accommodated to the greatest extent possible. [138]

 

Swedish Penal code prescribes ‘serious violations of a treaty or agreement with a foreign power or an infraction of a generally recognized principle or tenet relating to IHL concerning armed conflicts’ as crime against international law. Thus, war crimes under this code was criminalized…genocide is dealt in Act on Penalty for Genocide, which was enacted to fulfill the obligations under 1948 Genocide Convention…however, there is no crimes against humanity in Swedish penal law. Most of the acts covered by the RS constitute serious (ordinary) crimes, for example, murder, assault, unlawful coercion, kidnapping or rape. If committed in an armed conflict, the act may also be criminalized as a crime against international law. [141]

 

The establishment of the court was not considered as an infringement of Sweden’s sovereignty. On the contrary, the Court, especially the complementarity principle as enshrined in the Statute, is regarded as a useful supplement to the jurisdiction of states over heinous crimes against international law and a welcome movement towards arresting impunity for such crimes. [145]