Crimes Against Humanity and War Crimes Bill

House of Commons

Session 1999-2000
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Crimes Against Humanity and War Crimes Bill

A
B I L L

TO
Provide for the implementation of the Rome Statute of the International Criminal Court respecting genocide, crimes against humanity and war crimes; and for connected purposes.
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

Offences relating to genocide, crimes against humanity and war crimes

Genocide, etc. committed in the United Kingdom.     1. - (1) A person who commits-

(a) genocide;

(b) a crime against humanity; or

(c) a war crime

is guilty of an offence.

    (2) A person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an offence.

    (3) A person who commits an offence under subsection (1) or (2) shall on conviction on indictment-

(a) be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) be liable to imprisonment for life, in any other case.

    (4) In this section and in section 3-

"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission;

"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission;

"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

    (5) For the avoidance of doubt, crimes described in Articles 6 and 7 and paragraph 2 of Article 8 of the Rome Statute are, as of July 17th 1998, crimes according to customary international law.

But this does not limit or prejudice in any way the application of existing or developing rules of international law.

Breach of responsibility by military commander or superior.     2. - (1) A military commander commits an offence if-

(a) the military commander-

(i) fails to exercise control properly over a person under his effective command and control or effective authority and control, and as a result the person commits an offence under section 1, or

(ii) fails, after the coming into force of this section, to exercise control properly over a person under his effective command and control or effective authority and control, and as a result the person commits an offence under section 3;

(b) the military commander knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence; and

(c) the military commander subsequently-

(i) fails to take, as soon as practicable, all necessary and reasonable measures within his power to prevent or repress the commission of the offence, or the further commission of offences under section 1 or 3, or

(ii) fails to take, as soon as practicable, all necessary and reasonable measures within his power to submit the matter to the competent authorities for investigation and prosecution.

    (2) A superior commits an offence if-

(a) the superior-

(i) fails to exercise control properly over a person under his effective authority and control, and as a result the person commits an offence under section 1, or

(ii) fails, after the coming into force of this section, to exercise control properly over a person under his effective authority and control, and as a result the person commits an offence under section 3;

(b) the superior knows that the person is about to commit or is committing such an offence, or consciously disregards information that clearly indicates that such an offence is about to be committed or is being committed by the person;

(c) the offence relates to activities for which the superior has effective authority and control; and

(d) the superior subsequently-

(i) fails to take, as soon as practicable, all necessary and reasonable measures within his power to prevent or repress the commission of the offence, or the further commission of offences under section 1 or 3, or

(ii) fails to take, as soon as practicable, all necessary and reasonable measures within his power to submit the matter to the competent authorities for investigation and prosecution.

    (3) A person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) or (2) is guilty of an offence.

    (4) A person who commits an offence under subsection (1), (2) or (3) is liable on conviction on indictment to imprisonment for life.

    (5) In this section-

"military commander" includes a person effectively acting as a military commander and a person who commands police with a degree of authority and control comparable to a military commander;

"superior" means a person in authority, other than a military commander.

Genocide, etc. committed outside the United Kingdom.     3. - (1) A person who, either before or after the coming into force of this section, commits outside the United Kingdom-

(a) genocide,

(b) a crime against humanity, or

(c) a war crime,

is guilty of an offence and may be prosecuted for that offence in accordance with section 5.

    (2) A person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an offence.

    (3) A person who commits an offence under subsection (1) or (2) shall on conviction on indictment-

(a) be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) be liable to imprisonment for life, in any other case.

    (4) For the avoidance of doubt, the offence of crime against humanity was part of customary international law or was criminal according to the general principles of law recognized by the community of nations before the coming into force of either of the following-

(a) the Agreement for the prosecution and punishment of the major war criminals of the European Axis, signed at London on August 8th 1945; and

(b) the Proclamation by the Supreme Commander for the Allied Powers, dated January 19th 1946.

Breach of responsibility by military commander or superior outside the United Kingdom.     4. - (1) A military commander commits an offence if-

(a) the military commander, outside the United Kingdom-

(i) fails to exercise control properly over a person under his effective command and control or effective authority and control, and as a result the person commits an offence under section 1, or

(ii) fails, before or after the coming into force of this section, to exercise control properly over a person under his effective command and control or effective authority and control, and as a result the person commits an offence under section 3;

(b) the military commander knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence; and

(c) the military commander subsequently-

(i) fails to take, as soon as practicable, all necessary and reasonable measures within his power to prevent or repress the commission of the offence, or the further commission of offences under section 1 or 3, or

(ii) fails to take, as soon as practicable, all necessary and reasonable measures within his power to submit the matter to the competent authorities for investigation and prosecution.

    (2) A superior commits an offence if-

(a) the superior, outside the United Kingdom-

(i) fails to exercise control properly over a person under his effective authority and control, and as a result the person commits an offence under section 1, or

(ii) fails, before or after the coming into force of this section, to exercise control properly over a person under his effective authority and control, and as a result the person commits an offence under section 3;

(b) the superior knows that the person is about to commit or is committing such an offence, or consciously disregards information that clearly indicates that such an offence is about to be committed or is being committed by the person;

(c) the offence relates to activities for which the superior has effective authority and control; and

(d) the superior subsequently-

(i) fails to take, as soon as practicable, all necessary and reasonable measures within his power to prevent or repress the commission of the offence, or the further commission of offences under section 1 or 3, or

(ii) fails to take, as soon as practicable, all necessary and reasonable measures within his power to submit the matter to the competent authorities for investigation and prosecution.

    (3) A person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) or (2) is guilty of an offence.

    (4) A person who is alleged to have committed an offence under subsection (1), (2) or (3) may be prosecuted for that offence in accordance with section 5.

    (5) A person who commits an offence under subsection (1), (2) or (3) is liable on conviction on indictment to imprisonment for life.

    (6) Where an act or omission constituting an offence under this section occurred before the coming into force of this section, sub-paragraphs (1)(a)(ii) and (2)(a)(ii) apply to the extent that, at the time and in the place of the act or omission, the act or omission constituted a contravention of customary international law or conventional international law or was criminal according to the general principles of law recognized by the community of nations, whether or not it constituted a contravention of the law in force at the time and in the place of its commission.

    (7) In this section-

"military commander" includes a person effectively acting as a military commander and a person who commands police with a degree of authority and control comparable to a military commander;

"superior" means a person in authority, other than a military commander.

Judicial process

Jurisdiction.     5. A person who is alleged to have committed an offence under section 3 or 4 may be prosecuted for that offence if-

(a) at the time the offence is alleged to have been committed-

(i) the person was a British citizen or was employed by the United Kingdom in a civilian or military capacity,

(ii) the person was a citizen of a state that was engaged in an armed conflict against the United Kingdom, or was employed in a civilian or military capacity by such a state,

(iii) the victim of the alleged offence was a British citizen, or

(iv) the victim of the alleged offence was a citizen of a state that was allied with the United Kingdom in an armed conflict; or

(b) after the time the offence is alleged to have been committed, the person is present in the United Kingdom.

Attorney General's consent.     6. No proceedings for an offence under this Act may be commenced without the personal consent in writing of the Attorney General, and those proceedings may be conducted only by the Attorney General or counsel acting on his behalf.

Evidence and procedure.     7. Proceedings for an offence alleged to have been committed before the coming into force of this section shall be conducted in accordance with the laws of evidence and procedure in force at the time of the proceedings.

Defences.     8. In proceedings for an offence under this Act the accused may rely on any justification, excuse or defence available under the laws of the United Kingdom or under international law at the time of the alleged offence or at the time of the proceedings.

Person previously tried outside the United Kingdom.     9. - (1) If a person is alleged to have committed an act or omission that is an offence under this Act, and the person has been tried and dealt with outside the United Kingdom in respect of the offence in such a manner that, had he been tried and dealt with in the United Kingdom, he would be able to claim a pardon, the person is deemed to have been so tried and dealt with in the United Kingdom.

    (2) Notwithstanding subsection (1), a person may not claim a pardon in respect of an offence under any of sections 1 to 4 if the person was tried in a court of a foreign state or territory and the proceedings in that court-

(a) were for the purpose of shielding the person from criminal responsibility; or

(b) were otherwise not conducted independently or impartially in accordance with the norms of due process recognized by international law, and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person to justice.

Conflict with internal law.     10. It is not a justification, excuse or defence with respect to an offence under this Act that the offence was committed in obedience to or in conformity with the law in force at the time and in the place of its commission.

Defence of superior orders.     11. - (1) In proceedings for an offence under this Act it is not a defence that the accused was ordered by a government or a superior, whether military or civilian, to perform the act or omission that forms the subject-matter of the offence, unless-

(a) the accused was under a legal obligation to obey orders of the government or superior;

(b) the accused did not know that the order was unlawful; and

(c) the order was not manifestly unlawful.

    (2) For the purpose of paragraph (1)(c), orders to commit genocide or crimes against humanity are manifestly unlawful.

    (3) An accused cannot base his defence under subsection (1) on a belief that an order was lawful if the belief was based on information about a civilian population or an identifiable group of persons that encouraged, was likely to encourage or attempted to justify the commission of inhumane acts or omissions against the population or group.

Orders.     12. - (1) When a request is presented to the Secretary of State by the International Criminal Court for the enforcement of an order for the restraint or seizure of proceeds of crime, he may authorise the Attorney General to make arrangements for the enforcement of the order.

    (2) When a request is presented to the Secretary of State by the International Criminal Court for the enforcement of an order of reparation or forfeiture, or an order imposing a fine, he may authorise the Attorney General to make arrangements for the enforcement of the order.

Approval of request for investigative measures.     13. - (1) When the Secretary of State approves a request of a state or entity to have a search or a seizure, or the use of any device or investigative technique or other procedure or the doing of any other thing to be described in a warrant, carried out regarding an offence, he shall provide a competent authority with any documents or information necessary to apply for a search warrant or other warrant.

    (2) The competent authority who is provided with the documents or information shall apply ex parte for a search warrant or other warrant to the Crown Court in the area in which the competent authority believes that evidence may be found.

Miscellaneous offences

Obstructing justice.     14. - (1) A person who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice of the International Criminal Court is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than 10 years.

    (2) Without prejucice to the generality of subsection (1), a person is deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in an existing or proposed proceeding of the International Criminal Court-

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; or

(b) accepts, obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence.

Obstructing officials.     15. A person who resists or wilfully obstructs an official of the International Criminal Court in the execution of his duty or any person lawfully acting in aid of such an official-

(a) is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

Bribery of judges and officials.     16. A person is guilty of an offence and is liable on conviction on indictment to imprisonment for a term of not more than 14 years who-

(a) being a judge or an official of the International Criminal Court, corruptly accepts, obtains, agrees to accept or attempts to obtain for himself or any other person any money, valuable consideration, office, place or employment-

(i) in respect of anything done or omitted or to be done or omitted by him in his official capacity, or

(ii) with intent to interfere in any other way with the administration of justice of the International Criminal Court; or

(b) gives or offers, corruptly, to a judge or an official of the International Criminal Court, any money, valuable consideration, office, place or employment-

(i) in respect of anything done or omitted or to be done or omitted by him in his official capacity, or

(ii) with intent to interfere in any other way with the administration of justice of the International Criminal Court.

Perjury.     17. - (1) Subject to subsection (5), a person commits perjury who, with intent to mislead, makes a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false, before a judge of the International Criminal Court or an official of that Court who is authorised by the Court to permit statements to be made before him.

    (2) A person who gives evidence or a statement commits perjury who, with intent to mislead, makes a false statement knowing that it is false, whether or not the false statement was made under oath or solemn affirmation in accordance with subsection (1), so long as the false statement was made in accordance with any formalities required by the law of the place outside the United Kingdom in which the person is virtually present or heard.

    (3) A person who commits perjury is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than 14 years.

    (4) Subsection (1) applies whether or not a statement is made in a judicial proceeding of the International Criminal Court.

    (5) Subsection (2) does not apply to a statement that is made by a person who is not specially permitted, authorised or required by law to make that statement.

Witness giving contradictory evidence.     18. - (1) A person who, being a witness in a proceeding of the International Criminal Court, gives evidence with respect to any matter of fact or knowledge and who later, in a proceeding of that Court, gives evidence that is contrary to his previous evidence, and who, in giving evidence in either proceeding, intends to mislead, is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than 14 years, whether or not the prior or later evidence is true.

    (2) If a person is charged with an offence under this section, a certificate that specifies with reasonable particularity the proceeding in which the person is alleged to have given the evidence in respect of which the offence is charged, is evidence that it was given in a proceeding of the International Criminal Court, without proof of the signature or official character of the person by whom the certificate purports to be signed, if it purports to be signed by the Registrar of that Court or another official having the custody of the record of that proceeding or by his lawful deputy.

Fabricating evidence.     19. A person who, with intent to mislead, fabricates anything with intent that it be used as evidence in an existing or proposed proceeding of the International Criminal Court, by any means other than perjury or incitement to perjury, is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than 14 years.

Offences relating to affidavits.     20. A person is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than two years who, in respect of an existing or proposed proceeding of the International Criminal Court-

(a) signs a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared before him when the writing was not so sworn or declared or when he knows that he has no authority to administer the oath or declaration;

(b) uses or offers for use any writing purporting to be an affidavit or statutory declaration that he knows was not sworn or declared, as the case may be, by the affiant or declarant or before a person authorised to administer the oath or declaration; or

(c) signs as affiant or declarant a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared by him, as the case may be, when the writing was not so sworn or declared.

Intimidation.     21. A person who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that the person has a lawful right to do, or to do anything that the person has a lawful right to abstain from doing, in relation to a proceeding of the International Criminal Court, causes the person reasonably, in all the circumstances, to fear for his safety or the safety of anyone known to him-

(a) is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

Offences against the International Criminal Court.     22. - (1) A person who, being a British citizen, commits outside the United Kingdom an act or omission in relation to the International Criminal Court that if committed in the United Kingdom would be an offence under this Act or would be contempt of court is deemed to have committed that act or omission in the United Kingdom.

    (2) A person who, being a British citizen, commits outside the United Kingdom an act or omission that if committed in the United Kingdom would constitute conspiring or attempting to commit, being an accessory after the fact in relation to, or counselling in relation to, an act or omission that is an offence or a contempt of court under subsection (1) is deemed to have committed that act or omission in the United Kingdom.

Retaliation against witnesses.     23. - (1) A person who, being a British citizen, commits outside the United Kingdom an act or omission against a person or a member of the person's family in retaliation for the person having given testimony before the International Criminal Court, that if committed in the United Kingdom would be an offence is deemed to have committed that act or omission in the United Kingdom.

    (2) A person who, being a British citizen, commits outside the United Kingdom an act or omission that if committed in the United Kingdom would constitute conspiring or attempting to commit, being an accessory after the fact in relation to, or counselling in relation to, an act or omission that is an offence under subsection (1) is deemed to have committed that act or omission in the United Kingdom.

Possession of property obtained by certain offences.     24. - (1) No person shall possess any property or any proceeds of property knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of-

(a) an act or omission in the United Kingdom that constituted genocide, a crime against humanity or a war crime, as defined in section 1;

(b) an act or omission outside the United Kingdom that constituted genocide, a crime against humanity or a war crime, as defined in section 3;

(c) the commission of an offence under any other provsion of this Act; or

(d) a conspiracy or an attempt to commit, being a party to, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in any of paragraphs (a) to (c).

    (2) A person who contravenes subsection (1)-

(a) is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than 10 years; or

(b) is guilty of an offence and liable on summary conviction to imprisonment for a term of not more than two years.

Laundering proceeds of certain offences.     25. - (1) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner or by any means, any property or any proceeds of property with intent to conceal or convert the property or proceeds and knowing or believing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of-

(a) an act or omission in the United Kingdom that constituted genocide, a crime against humanity or a war crime, as defined in section 1;

(b) an act or omission outside the United Kingdom that constituted genocide, a crime against humanity or a war crime, as defined in section 3;

(c) the commission of an offence under any other provision of this Act; or

(d) a conspiracy or an attempt to commit, being a party to, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in any of paragraphs (a) to (c).

    (2) A person who contravenes subsection (1)-

(a) is guilty of an offence and liable on conviction on indictment to imprisonment for a term of not more than 10 years; or

(b) is guilty of an offence and liable on summary conviction to imprisonment for a term of not more than two years.

Crimes Against Humanity Fund

Crimes Against Humanity Fund.     26. - (1) There is hereby established a fund, to be known as the Crimes Against Humanity Fund, into which shall be paid-

(a) all money obtained through enforcement in the United Kingdom of orders of the International Criminal Court for reparation or forfeiture or orders of that Court imposing a fine; and

(b) any money otherwise received as a donation to the Crimes Against Humanity Fund.

    (2) The Attorney General may make payments out of the Crimes Against Humanity Fund, with or without a deduction for costs, to the International Criminal Court, the Trust Fund established under article 79 of the Rome Statute, victims of offences under this Act or of offences within the jurisdiction of the International Criminal Court, and to the families of those victims, or otherwise as the Attorney General sees fit.

    (3) The Secretary of State may make regulations respecting the administration and management of the Crimes Against Humanity Fund.

General

Application to the Crown.     27. This Act binds the Crown.

Interpretation.     28. In this Act-

"conventional international law" means any convention, treaty or other international agreement-

(a) that is in force and to which the United Kingdom is a party, or

(b) that is in force and the provisions of which the United Kingdom has agreed to accept and apply in an armed conflict in which it is involved;

"International Criminal Court" means the International Criminal Court established by the Rome Statute;

"internationally protected person" includes judges and officials of the International Criminal Court;

"official", in respect of the International Criminal Court, means the Prosecutor, Registrar, Deputy Prosecutor and Deputy Registrar, and the staff of the organs of the Court;

"Rome Statute" means the Rome Statute of the International Criminal Court adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17th 1998, as corrected by the proces-verbaux of November 10th 1998, July 12th 1999, November 30th 1999 and May 8th 2000, portions of which are set out in the Schedule.

Commencement.     29. - (1) This Act shall come into force when the Secretary of State has made a statement to the effect that in his view the provisions of the Act are compatible with the Convention rights.

    (2) In this section "Convention rights" has the meaning given in the Human Rights Act 1998.

Short title.     30. This Act may be cited as the Crimes Against Humanity and War Crimes Act 2000.

© Parliamentary copyright 2000
Prepared 27 July 2000