International crimes and ICC cooperation in England and Wales

Journal of International Criminal Justice

Volumn 5, Issue 2, 2007, Pages 441-459

  Cryer, Robert ^a   Bekou, Olympia ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 34547105819     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql083     Document Type: Article

References (123)

1. International Criminal Court Act 2001c.17, [2001] 1 Law Reports: Statutes 1367 (hereinafter 'ICC Act'). The Act also contains provisions to cover Northern Ireland.
2. International Criminal Court Act 2001 (Commencement) Order 2001, SI 2161, 2001 SI 2304 as amended by International Criminal Court Act 2001 (Commencement) (Amendment) Order 2001, 2001 SI 2301. Scotland being governed by its system of criminal law, the Scottish Parliament brought in similar legislation at approximately the same time. This Act was passed on 24 September 2001, and entered into force on 17 December 2001. International Criminal Court (Scotland) Act 2001, 2001 ASP 13. This article will concentrate on the England and Wales Act.
3. House of Lords Hansard, Vol. 623, cols 418-419.
4. See generally C. Kreß, K. Prost, A. Schlunck and P. Wilkitzi, 'Part 9', in O. Triffterer (ed.), Commentary on the ICC Statute of the International Criminal Court (Baden-Baden: Nomos, 1999) 1045-1050.
5. See C. Garraway, 'Military Excesses: Is There a Right Way of Dealing?', 2 Journal of International Criminal Justice (2004) 981-987, at 982.
6. We will not deal, for example, with the offences against the ICC (dealt with in s.61 of the ICC Act). For reflections on other ICC Act issues, see R. Cryer, 'Implementation of the International Criminal Court Statute in England and Wales', 51 International and Comparative Law Quarterly (2001) 733-743.
7. See for example, M.N. Shaw, International Law (5th edn., Cambridge: Cambridge University Press, 2003), 128-143.
8. I.e. those crimes defined in Arts 6-8 ICCSt.
9. See c.53 [1957] Law Reports: Statutes 543 as amended by the Geneva Conventions (Amendment) Act 1995, c.27.
10. c.12 [1969] Law Reports: Statutes 75.
11. c.13 [1991] 1 Law Reports: Statutes 101.
12. See D. Turns, 'Prosecuting Violations of International Humanitarian Law: The Position in the United Kingdom', 4 Journal of Armed Conflict Law (1998) 1-39.
13. The conviction concerned the matter of Andrei Sawoniuk. R. v. Sawoniuk [2000] 2 Criminal Appeal Reports 220. A second prosecution, concerning the matter of Simon Serafinowicz, was abandoned owing to the defendant's Alzheimer's disease.
14. R. v. Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte [No.3] [1999] 2 Weekly Law Reports 827.
15. For cogent critique see R. O'Keefe, 'Customary Crimes in English Courts', 72 British Yearbook of International Law (2001) 293-335.
16. Jones and Milling, Olditch and Pritchard and Richards v. Gloucester Crown Prosecution Service [2004] EWCA 1981. R. v. Jones et al. [2006] UKHL 16.
17. On the Court of Appeal decision see R. Cryer, 'Aggression at the Court of Appeal', 10 Journal of Conflict and Security Law (2005) 209-230
18. and D. Ormerod, 'Criminal Damage: Defendants Damaging Property at Operational Military Airbase', Criminal Law Review (2005) 122-125.
19. See ICC Act, Part 5, Sections 50-69.
20. See Section 67 ICC Act.
21. The interpretation of 'resident' is a matter of considerable complexity, and it is likely that the term was chosen precisely for its unresolved nature.
22. The Elements of Crimes were incorporated into the British legal system by Statutory Instruments, the most recent of which is the International Criminal Court Act 2001 (Elements of Crimes) (No. 2) Regulations 2004, 2004, SI 3239.
23. On the relative normativity of international norms in domestic courts see K. Knop, 'Here and There: International Law in Domestic Courts', 32 New York University Journal of International Law and Politics (1999-2000) 501-535.
24. Section 50(5), sentence 2, of the ICC Act states that '[a]ccount may also be taken of any other relevant international jurisprudence' [emphasis added].
25. See A. Roberts and R. Guellf, Documents on the Law of War (3rd edn., Oxford: Oxford University Press, 1999), 510-512.
26. Text available at: http://untreaty.un.org/ENGLISH/bible/ englishinternetbible/partI/chapterXVIII/treaty10.asp (visited 25 October 2005).
27. Judgment, Kupreškić (IT-95-16-T), Trial Chamber, 14 January 2000, § 521-536.
28. The British view is that the case is wrong on this point, see Ministry of Defence, Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004), 421.
29. Owing to the permissive phrasing of Section 50(5), sentence 2, this applies a fortiori to e.g. an ICTY judgment.
30. The extent to which inchoate incitement of war crimes or crimes against humanity are customarily criminal, and thus subject to universal jurisdiction might be questioned. This would only become an issue in proceedings brought against a person prosecuted pursuant to Section 68(1-2).
31. See J.C. Smith, Smith and Hogan: Criminal Law (10th edn., London: Butterworths, 2002), 152-160.
32. See also R. v. Bryce [2004] EWCA 1231
33. and R. v. O'Flaherty [2004] EWCA 526.
34. The position in England and Wales is more akin to the ICTY's interpretation of the principle, Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, §229.
35. Section 65(5) of the ICC Act provides for reference to ICC and other relevant international jurisprudence for interpreting the principle of command responsibility. Section 66 of the ICC Act also incorporates the mental element described in Art. 30 ICCSt. As in the Statute, the ICC Act requires that the person accused of these ICC crimes have the mental element of intent and knowledge of the material elements of the offence to be held criminally responsible and liable for punishment for a crime.
36. For examples see M. Damaška, 'The Shadow Side of Command Responsibility', 49 American Journal of Comparative Law (2001) 455-496;
37. W. Schabas, 'Canadian Implementing Legislation for the Rome Statute', 3 Yearbook of International Humanitarian Law (2000) 337-346.
38. See Attorney-General, (Lord Goldsmith) House of Lords Hansard, 19 July 2005, Column WS80-WS81. It is worth noting that three of those troops alleged to have physically perpetrated the offence against the Iraqi hotel receptionist have become the first individuals to be charged with war crimes under the ICC Act.
39. Ibid. Corporal David Payne has also been charged with the domestic offence of manslaughter in relation to the Iraqi hotel receptionist's death. British service-members are subject to British domestic law for their actions overseas. Army Act Section 70 provides for additional possible charges to address these offences.
40. Article 31(1)(d) ICCSt.
41. R. v. Howe [1987] 1 All ER 771.
42. Against the position in England and Wales is closer to that adopted (this time controversially) by the ICTY, see Judgment, Erdemović (IT-96-22-A), Appeals Chamber, 7 October 1997.
43. See Cryer, supra note 6, at 741.
44. B. Broomhall, International Justice and the International Criminal Court: Between State Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003), 77.
45. J. Crawford, 'Negotiating the ICC Statute', in P. Sands (ed.), From Nuremberg to the Hague: The Future of International Criminal Justice (Cambridge: Cambridge University Press, 2003) 109-156, at 152.
46. See Canadian Crimes Against Humanity and War Crimes Act, 2000 c.24, Section 4(3).
47. For contrast, see A. Zimmermann, 'Implementing the ICC Statute: The German Example', in L.C. Vohrah et al. (eds) Man's Inhumanity to Man: Essays in International Law in Honour of Antonio Cassese (The Hague: Kluwer, 2003) 977-994.
48. See Jones et al., supra note 14.
49. Above, note 14 (House of Lords), §22 (Lord Bingham);
50. Lord Hoffman seemed more sceptical, albeit not unambiguously so ( §59).
51. See e.g. Smith, supra note 26, at 16.
52. O'Keefe, supra note 13, at 297.
53. See for example S.R. Ratner, 'Belgium's War Crimes Statute: A Postmortem', 97 American Journal of International Law (2003) 888-897. The same limitation was included in the Geneva Conventions Act 1957, section 1(3).
54. See Smith, supra note 26, at 16.
55. See Cryer, supra note 6, at 741.
56. Section 53(5) of the ICC Act states that a person convicted of such an offence 'shall be dealt with as for an offence of murder', which, in the United Kingdom, results in a mandatory life sentence.
57. See Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, § 507-508.
58. See Sexual Offences Act 2003, c.42, [2003] Law Reports: Statutes 3599 section 1(4).
59. See Art. 88 ICCSt.
60. This is more so as Art. 63 ICCSt. prohibits trials in absentia before the ICC.
61. As the ICTY's first president observed, 'the ICTY is very much like a giant without arms and legs - it needs artificial limbs to walk and work. And these artificial limbs are state authorities. If the co-operation of states is not forthcoming, they cannot fulfil their functions'. See A. Cassese, 'On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law', 9 European Journal of International Law (1998) 2-17, at 2. This applies a fortiori to the ICC, which, except for referrals, cannot rely on the Security Council to provide incentives for cooperation.
62. A comprehensive examination of each provision of these parts is beyond the scope of this article. As a result, this discussion will be limited to selected sections.
63. See e.g. New Zealand International Criminal Court Act 2000. Many States however incorporate the crimes and the cooperation regimes in separate acts, rather than in a single piece of legislation.
64. Parts 2 and 3 of the ICC Act, which deal with cooperation, follow the definition of terms within the Act.
65. In the United Kingdom, any human rights challenges to actions taken under the ICC Act would have to be brought under the Human Rights Act 1998, c.42. See R. Clayton and H. Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2000).
66. Art. 89 ICCSt.
67. Section 2 of the ICC Act incorporates Art. 91(2) and (3) of the ICC Statute. Section 14 of the ICC Act clarifies the position of an endorsed warrant within the British legal system. Although a useful provision, its natural place in the ICC Act would have been together with Section 2.
68. Art. 91(2) and 91(3) ICCSt.; Section 2(3) of the ICC Act.
69. Note 15, ICC Act Explanatory Notes. However, there is no guarantee that the warrant in the United Kingdom win be identical to the ICC one.
70. Art. 91 ICCSt.
71. Art. 102 ICCSt.
72. Section 5(5) ICC Act.
73. As Lord Howell of Guildford observed in the discussion ot the Bill, 'the delivery court will operate on tramlines, within an extremely limited range'. House of Lords Hansard, Vol. 621, col. 1296.
74. See also Lord Lamont of Lerwick, ibid., col. 1298.
75. See for instance France, Loi no. 2002-268 du 26 février 2002 relative à la coopération avec la Cour pénale internationale, Art. 627-10. Once the British court makes the delivery order, the procedure to be followed can be found in Section 11 of the ICC Act. However, in Section 8 of the ICC Act, the consequences of a competent court refusing to make a delivery order are discussed. Notably, no reasons are given as to why the court would refuse to make such an order.
76. Section 9 ICC Act.
77. For judicial review, see Section 12 of the ICC Act, whereas habeas corpus is dealt with in Section 12(2) of the ICC Act.
78. House of Lords Hansard, Vol. 621, cols 1320-1326.
79. Sections 16-18 ICC Act.
80. Sections 18(1)(a) and (b) ICC Act.
81. The Implications for Council of Europe Member States of the Ratification of the JCC Statute of the international Criminal Court Progress Report by the United Kingdom, 7 September 2001, at 3, available at: http://www.coe.int/t/E/LegalAffairs/Legal.co-operation/ Transnational.criminal.justice/International.Criminal.Court/Documents/ ConsultICC%282001%2931E.pdf (visited 25 October 2006).
82. Section 4 of the ICC Act contains the procedure subsequent to a provisional arrest.
83. Art. 92(2)(a) of the ICC Statute simply stipulates that information on the person's probable location is necessary for provisional arrest.
84. The freeing of an indictee would occur in accordance with Rule 188 of the ICC's Rules of Procedure and Evidence.
85. For the rationale of choosing an Order in Council to specify the time limit, see Note 20 of the ICC Act Explanatory Notes.
86. Art 92(3) ICCSt.
87. Section 7 ICC Act.
88. Section 7(2) ICC Act.
89. Similar wording is adopted in the Crime (International Co-operation) Act 2003, Section 47(5) regarding transfer of British prisoners to assist with the investigation of an offence abroad. Note Also that in the Extradition Act 2003 when there is a physical or mental condition which would render it unjust or oppressive to extradite the person, the judge may either order discharge or adjourn the extradition hearing. See Sections 25(2) and (3) and Sections 91(2) and (3) of the Extradition Act 2003. Section 7(2) of the ICC Act makes reference to the circumstances where it would be inappropriate for a person to act for himself by reason of his youth. Given that minors cannot be tried by the ICC, this is superfluous. See Art. 26 ICCSt.
90. Irregularities have been invoked in the following ICTY cases: Decision, Dokmanović (IT-95-13a), Trial Chamber, 22 October 1997;
91. Decision, Todorović (IT-95-9), Trial Chamber, 25 March 1999;
92. Decision, Nikolić (IT-94-2), Trial Chamber, 9 October 2002.
93. Se also Decision, Nikolić (IT-94-2) Appeals Chamber, 5 June 2003;
94. Decision, Milošević (IT-02-54), Trial Chamber, 8 November 2001, §38;
95. Decision, Brdanin (IT-99-36), Trial Chamber, 8 December 1999, § 4-6.
96. Section 5(6) ICC Act.
97. Section 5(7) ICC Act.
98. Section 5(8) ICC Act. Several Lords felt uncomfortable with the fact that the United Kingdom is not able to grant relief domestically. See House of Lords Hansard, Vol. 620, col. 991.
99. Art. 86, ICCSt.
100. In accordance with Art. 85 of the ICCSt. See also the Decision, Barayagwiza (ICTR-97-19), Appeals Chamber, 3 November 1999, § 91-99, and §106.
101. Cf. France implementing legislation, Arts 627-6 and 627-10, supra note 61.
102. House of Lords Hansard, Vol. 621, cols 1299-1300.
103. Art. 90 ICCSt. See generally K. Prost 'Art. 90' in Triffterer, supra note 4, 1081-1090.
104. Section 9 of the ICC Act is the equivalent provision for proceedings in Scotland.
105. Schedule 2, Section 8(3) ICC Act.
106. The procedures for the identification of a person, outlined in Art. 93(1)(a) ICCSt. are incorporated in Section 34 and Schedule 4 of the ICC Act. Art. 93(1)(c) ICCSt. regarding the providing of assistance when questioning a person investigated/prosecuted by the ICC is implemented by Section 28 of the ICC Act. The main feature of this provision in the ICC Act, however, is the absence of any form of compulsion. Section 31 of the ICC Act incorporates Art. 93(1)(d) ICCSt. regarding the service of documents, and Sections 33 and 35 ICC Act implement Art. 93(1)(g)(h) ICCSt. by providing the necessary authority for exhumations and execution of searches and seizures.
107. See also Criminal Justice Act 2003, Sections 9 and 10.
108. See also Section 36 ICC Act; Section 29(3)(a) ICC Act.
109. See also the German implementing legislation, Section 53, Gesetz zur Ausführung des Römischen Status des Internationalen Strafgerichtshofs vom 17. Juli 1998. Cf. A. Ciampi, 'Other Forms of Co-operation', in A. Cassese et al. (eds), The ICC Statute of the International Criminal Court: A Commentary, Vol. II (Oxford: Oxford University Press, 2002) 1705-1747, at 1729.
110. Art. 94 ICCSt.
111. Schedule 2, Part 1, Sections 2(3)(b), (4) and (5) ICC Act.
112. Art. 95 ICCSt.
113. Section 5(4) ICC Act.
114. For other grounds of refusal to cooperate in the ICC Act, see Cryer, supra note 6.
115. Art. 93(4) ICCSt.
116. On Art. 72 ICCSt., see O. Triffterer, 'Security Intersts of the Community of States, Basis and Justification of an International Criminal Jurisdiction Versus Protection of National Security Information, Article 72 Rome Statute', in H. Roggemann and P. Šarčević (eds), National Security and International Criminal Justice (The Hague: Kluwer, 2002) 53-82;
117. H.J. Behrens, 'Protection of National Security Information in the ICC: A Guide to Article 72 of the ICC Statute', ibid., at 115-126.
118. ICTY, Judgment, Blaškić (IT-95-14), Appeals Chamber, 29 October 1997, § 67-69.
119. see Art. 87(7) ICCSt.
120. Section 39 ICC Act.
121. See e.g. 'We Can't Brand These Soldiers War Criminals', Daily Telegraph, 21 July 2005 available at http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2005/07/21/ dl2101.xml (visited 25 October 2005).
122. Robin Cook, 'It is Not Political Correctness to Hold Soldiers to Account', The Guardian, 22 July 2005 available at http:// www.guardian.co.uk/comment/story/0,3604,1533959,00.html (visited 25 October 2005).
123. 'Officers Back Trial of Colonel Over Death of Iraqi Detainee', Daily Telegraph, 24 July 2005 available at http://www.telegraph.co.uk/news/ main.jhtml?xml=/news/2005/07/24/narmy24.xml (visited 25 October 2005).