II. Implementation of the criminal court statute in england and wales

International and Comparative Law Quarterly

Volumn 51, Issue 3, 2002, Pages 733-743

  Warbrick, Colin ^a   Mcgoldrick, Dominic ^a   Cryer, Robert ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 85023099017     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300066331     Document Type: Article

References (89)

1. Scotland has its own implementing legislation, the International Criminal Court (Scotland) Act 2001, 2001 ASP 13. However the procedures in the Act discussed in this piece relating to arrest and surrender apply, mutatis mutandis, to Scotland.
2. Pursuant to s 82, Secretary of State Jack Straw brought the Act into force with the International Criminal Court Act 2001 (Commencement) Order 2001, 2001 SI 2161
3. as amended by 2001 SI 2304.
4. HC Hansard, vol. 316, col. 807 (20 July 1998) (Mr Cook).
5. e.g. ICC Statute, Art 99
6. ICC Statute, Art 93(1).
7. ICC Statute, Art 93(1)(1).
8. ICC Statute, Art 86.
9. ICC Statute, Art 88.
10. ICC Statute, Art 89 and 92 respectively.
11. This is acceptable, see ICC Statute, Art 72.
12. ICC Statute Art 55(2)(b).
13. ICC Statute, Art 5(2).
14. ICC Statute, Decision on Zdravko Mucic's Motion for the Exclusion of Evidence, IT-96–1-T, 2 Sept 1997 (PR D5082–D5105).
15. A good faith investigation by the UK would prevent the ICC from requiring the UK to defer a prosecution to it (see ICC Statute, Art 17). But the UK could decide to waive its complementarity rights.
16. 1965 c 45. On which see I Stanbrook and C Stanbrook, Extradition Law and Practice, 2nd edn (Oxford: Oxford University Press, 2000), 257–260.
17. The analogy was made by Lord Williams of Mostyn, HL Hansard, vol. 621, col 1287 (8 Feb 2001).
18. HL Hansard, s 5(1).
19. HL Hansard, ss 5(3)(a), 15.
20. Or (in the case of a person already convicted by the ICC, to the State in which he is to serve his sentence (HL Hansard, s 5(3)(b)). The procedure for reviewing decisions of the court to grant, or refuse, delivery orders is given by ss 8 and 9 (for refusals) and ss 12 and 13 (for review of decisions to make an order).
21. HL Hansard, s 5(2)(a)(b).
22. HL Hansard, s 5(5).
23. See M Forde, The Law of Extradition in the United Kingdom ((Dublin: Round Hall, 1995), 67–73.
24. ICC Statute, Art 58.
25. European Convention on Extradition 1957, ETS No 24.
26. This was implemented in 1990, 1990 SI 1507, reg 3.
27. The objections identified by Lady Fox (‘The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal’ (1997) 46 ICLQ 434) to surrender to the ICTY are not applicable here.
28. ICC Statute, Art 92(1)(c).
29. ICC Statute, s 5(8).
30. HL Hansard, vol. 621, col. 1300. The ICC has the power, under Art 85 of the ICC Statute, to order compensation.
31. As the Joint Appeals chamber confirmed in Prosecutor v Barayagwiza, Decision, ICTR-97–19, 3 Nov 1999, paras 73–7, a court has inherent jurisdiction to refuse to proceed if to do so would amount to an abuse of process. S 4(9) requires to inform the ICC of any declarator on violations of a suspects rights made by the court issuing the delivery order.
32. R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte [No 3] [1999] 2 WLR 827.
33. Arrest Warrant of 11 Apr 2000, ICJ General List 121, 14 Feb 2002, available at .
34. ICJ General List, para 61.
35. ICJ General List.
36. ICC Statute, Art 27.
37. Pinochet above n 44, 844–845
38. Yerodia, above n 45, paras 56–7.
39. Equally, the Cour de Cassation, in Abetz (28 July 1950), noted (1952) 46 AJIL 161 declared that international law removed diplomatic immunity from those accused of war crimes.
40. ICC Statute, Art 27.
41. HL Hansard, vol.622, col.11 (12 Feb 2001).
42. D. Sarooshi, ‘The Statute of the International Criminal Court’ (1999) 48 ICLQ 386, 391–2, considers there to be no obligation, even on States party, to waive immunity, At the least, Art 93(1)(1) might be considered sufficient authority for the ICC to make an order for waiver to States party to the ICC Statute.
43. ‘[A] non-State party to the ICC Statute has not accepted that provision [Art 27] and the immunity of their diplomats remains intact unless there is an express waiver’, per Lord Avebury, ICLQ, col. 12. Where the ICC has jurisdiction by virtue of a Security Council referral, s 23(3) allows the Secretary of State to make Orders in Council applying the procedure normally applicable to State parties to all States. This may be done as the Security Council Resolution is likely, to provide for a regime that does not take note of immunities.
44. See K Prost and A Schlunck, ‘Article 98’, in O Triffterer (ed), Commentary on the Rome Statute for the International Criminal Court (Baden Baden: Nomos, 1999), 1131, 1131.
45. Baroness Scotland, accepted ‘The situation we are providing for will be rare. Precise details are difficult to predict’, HL Hansard, vol 623, col 411 (8 Mar 2001).
46. This provision caused considerable disagreement in the House of Lords, HL Hansard, cols 410–13.
47. Baroness Scotland, HL Hansard, col 411.
48. S 23 Extradition Act 1989 c 33, (prior to amendment). S 73 of the Act amends s 23 of the Extradition Act to include crimes against humanity and war crimes.
49. See G Gilbert, Transnational Fugitive Offenders in International Law (The Hague: Nijhoff, 1998), 392–3.
50. Transnational Fugitive Offenders in International Law, 395.
51. For example, there are similar provisions in the Extradition Act 1989 (ss 2(1)(b)(ii), 2(3)(a)) allowing for extradition to countries prosecuting on the basis of nationality jurisdiction, despite the UK, for the most part, not doing so. This is easily explained by the fact that nationality jurisdiction is established in international law.
52. See Stanbrook and Stanbrook, Extradition Act, 44.
53. In short, genocide and grave breaches of the Geneva Conventions and Additional Protocol I were crimes under UK law (pursuant to the Genocide Act 1969, c 12
54. the Geneva Conventions Act 1957 c 53
55. (as amended by the Geneva Conventions (Amendment Act 1995 c 27) respectively).
56. See D Turns, ‘Prosecuting Violations of International Humanitarian Law: The Legal Position in the United Kingdom’ (1999) 4 Journal of Armed Conflict Law, 1–39. The Act repeals the Genocide Act, s 83, Sch 10.
57. Above n 44, only Lord Millett was willing to accept customary law was capable of creating offences in domestic law, Journal of Armed Conflict Law, 912.
58. Lord Mostyn noted in during the passing of the ICC Bill that Art 8(2)(b)(iv) was a weaker version of the corresponding offence in Protocol I. HL Hansard, vol 623 col 1303 (20 Mar 2001).
59. See D Frank, ‘Article 8(2)(b)(iv)—Excessive Incidental Death, Injury, or Damage’ in RS Lee, et al (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (New York: Transnational, 2001) 147, 149–51.
60. See A Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 EJIL 144, 148.
61. On which see I Bantekas, ‘The Contemporary Law of Command Responsibility’ (1999) 93 AJIL 573.
62. ICC Statute, Art 31(d).
63. R v Howe [1987] A.C. 417.
64. ICC Statute Art 31(c).
65. Cassese, ICC Statute, 154–5.
66. The arguments against such action are, in essence, those against judicial creativity in offence making. As ATH Smith notes, ‘Judicial Law Making in the Criminal Law’ (1984) 100 LQR 46, 63–7, these do not apply to the formation of novel defences.
67. [1995] 1 All ER 334, 344.
68. [1994] 2 All ER 924, 928.
69. J.C. Smith, Smith and Hogan, Criminal Law, 9th edn (London: Butterworths, 1999) 263.
70. I. Brownlie, Principles of Public International Law, 5th edn, (Oxford: Clarendon Press, 1998), 42.
71. Comments in Abbott v R [1976] 3 WLR 462, 469, are both obiter and in the Privy Council.
72. Above n 74, p 427. See P Rowe, ‘Murder and the Law of War’ (1991) NILQ 216, 227.
73. C v DPP [1996] AC 1, 28.
74. AC.
75. A.P. Simester and GR Sullivan, Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2000, 650.
76. A.T.H. Smith, ‘Reshaping the Criminal Law in the House of Lords’ [1995] 54 CLJ 488, 490.
77. See P Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law’ (1999) 10 EJIL 172
78. contra H McCoubrey, ‘From Nuremberg to Rome: Restoring the Defence of Superior Orders, (2001) 50 ICLQ 386.
79. On which see CJ Greenwood, ‘The Twilight of the Law of Belligerent Reprisals’ (1989) 20 Netherlands YBIL 35.
80. eg, see Geneva Convention I, Art 46.
81. F. Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Convention of 1949’ (1988) 37 ICLQ 818, 832–5.
82. Although see Prosecutor v Kupresic et al Judgment, IT-95–16-T, 14 Jan 2000, paras 510–36. The ICTY appears to have rather over-read the state practice and opinio juris in this case.
83. Repr in A Roberts and R Guelff, Documents on the Laws of War, 3rd edn (Oxford: Oxford University Press, 2000), 511.
84. ICC Statute, Art 8(2)(b) chapeau.
85. R.Y. Jennings and A Watts (eds), Oppenheim's International Law Vol I: Peace, 9th edn (London: Longman, 1992), 469.
86. For such an interpretation of the similar jurisdictional claim in the 1991 War Crimes Act, see T Meron, ‘International Criminalisation of Internal Atrocities’ (1995) 89 AJIL 554, 573.
87. ICC Act, ss 53(3), 54(5) respectively.
88. ICC Statute, Art 77(1)(b).
89. Baroness Scotland, HL Hansard, vol 623, cols 418–19.