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These notes refer to the International Criminal Court
Bill [HL] International Criminal Court Bill [Hl]
EXPLANATORY NOTESINTRODUCTION1. These Explanatory Notes relate to the International Criminal Court Bill [HL] as brought from the House of Lords on 20 March 2001. They have been prepared by the Foreign and Commonwealth Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So when a clause or part of a clause does not seem to require any explanation or comments, none is given.
BACKGROUND3. Following several years of negotiation, the inter-governmental treaty which forms the Rome Statute of the International Criminal Court ("ICC Statute") was adopted on 17 July 1998. (The ICC Statute has been published as Cm 4555.) Once the Statute has been ratified by 60 States, the ICC will itself be created. The Foreign Secretary announced in the House of Commons on 20 July 1998 that the Government intended to introduce legislation to enable the UK to ratify the Statute and wished to be among the Court's founding members. The UK signed the Statute on 30 November 1998 and this Bill is intended, together with corresponding legislation in the Scottish Parliament, to enable the UK to comply with all its obligations under the Statute and accordingly to ratify.
4. The International Criminal Court ("ICC") will be a permanent Court, situated in The Hague, to try individuals for genocide, crimes against humanity and war crimes.. The ICC will be able to investigate crimes committed by nationals, or on the territory, of States Parties, or of non-State Parties who have given consent. It will also have jurisdiction over crimes, wherever committed, which are referred to the ICC by the United Nations Security Council. The ICC will have 18 judges and its own Prosecutor. The ICC will work with the assistance of States; States Parties are obliged to co-operate with the ICC, including by gathering evidence and arresting suspects.
5. The ICC will be "complementary" to national courts: relevant States will retain jurisdiction unless they are unable or unwilling genuinely to investigate and prosecute a crime. A situation may be referred to the ICC by the Security Council; alternatively a State Party can refer a situation to the Prosecutor or the Prosecutor can initiate an investigation on his own motion. In the latter two cases, if the Prosecutor has determined that there is a reasonable basis to commence an investigation, he must inform all States Parties and those States which would normally exercise jurisdiction over the alleged crime. Within one month, a State may inform the ICC that it is investigating, or has investigated, the alleged crimes. The Prosecutor must defer to the State's investigation unless the ICC determines that the State is unwilling or unable genuinely to carry out the investigation or prosecution. The definitions of unwillingness and inability are set out in Article 17 of the Statute.
5. 5. 6. The principal aims of the Bill are:
7. The Bill will extend to England, Wales and Northern Ireland. Many provisions of the Bill will also extend to Scotland, either because they deal with reserved matters under the Scotland Act 1998 or because they are devolved but the Scottish Parliament has agreed that they are more conveniently dealt with on a UK-wide basis in this Bill. The Scottish Executive has announced that it is bringing forward a separate International Criminal Court (Scotland) Bill to deal with the other issues which fall within the competence of the Scottish Parliament.
8. The Government published a draft International Criminal Court Bill on 25 August 2000 for public scrutiny (consultation paper Cm 4877). Forty-five submissions were received from interested Parliamentarians, lawyers and academics as well as human rights, religious and professional organisations. The Bill was revised in the light of their comments. A report on the consultation, outlining the main points raised and the Government's response, was issued in January 2001 and placed in the Library of both Houses of Parliament. It is also available on the Foreign & Commonwealth Office website (www.fco.gov.uk).
THE BILL9. The Bill is in six Parts, with ten Schedules.
COMMENTARY ON CLAUSESPART 1: THE INTERNATIONAL CRIMINAL COURT10. Part 1 has UK-wide extent.
Clause 1: The ICC and the ICC Statute11. This clause defines certain terms used in the Bill. The term "ICC crime" refers to genocide, war crimes, crimes against humanity and offences against the administration of justice of the ICC as defined in the Rome Statute. It does not include the crime of aggression. This is because, under Article 5 of the Statute, the ICC will exercise its jurisdiction over the crime of aggression only when agreement has been reached on a definition of that crime and the conditions under which jurisdiction will be exercised. Agreement has yet to be reached and would in any case require an amendment of the ICC Statute. The earliest such an amendment could be adopted is seven years after the entry into force of the Statute (see Articles 121 and 123). Any amendment to the crimes within the jurisdiction of the ICC, if accepted by the UK, would need to be given effect by amendment to this legislation.
12. Subsection (2) provides that references in the Bill to "articles" means articles of the ICC Statute, unless otherwise indicated. The same convention is used in this Commentary.
13. Subsection (3) introduces Schedule 1 which, inter alia, makes provision for secondary legislation to be made to confer legal capacity, privileges and immunities on the ICC and persons associated with the ICC; to enable the ICC to sit in the UK; to give effect, as necessary, to the ICC's Rules of Procedure and Evidence; and to secure the pension benefits of UK judges serving on the ICC. (Notes on Schedule 1 can be found at paragraphs 124-132 below.)
PART 2: ARREST AND DELIVERY OF PERSONS14. This Part, which has UK-wide extent, puts in place an expedited procedure to execute requests from the ICC for the arrest and surrender of persons. The procedure is broadly based on that already in place for arrest and surrender to the two ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda ("the International Criminal Tribunals") and is quite different from that used for extradition to other countries.
Clause 2: Request for arrest and surrender15. This clause sets out the procedure to be followed when the Government receives a request from the ICC for the arrest and surrender of an individual. This could be someone suspected of having committed an ICC crime or someone who has already been convicted by the ICC but has escaped custody in another country.
16. Subsection (1) requires the Secretary of State to transmit the request and the accompanying documents to an appropriate judicial officer (as defined in Clause 26). Subsection (3) requires the judicial officer to endorse an arrest warrant provided he is satisfied that it appears to have been issued by the ICC. Under Article 91.3 of the Statute, an ICC request for the arrest and surrender of a person already convicted may or may not contain an arrest warrant. If a request is received without an arrest warrant but is accompanied by the other documents specified in Article 91.3, subsection (4) requires the judicial officer to issue an arrest warrant himself.
17. An arrest warrant endorsed or issued under this clause is termed "a Section 2 warrant" and may be executed in any part of the UK (see Clause 14).
Clause 3: Request for provisional arrest18. Under Article 92 of the Statute, the ICC may, in urgent cases, request a State Party to make the provisional arrest of an individual before sending the formal request for surrender. This clause provides that, where the UK receives such a request, an application shall be made to an appropriate judicial officer who is required to issue a "provisional warrant".
19. Under subsection (2), where the Secretary of State considers the application for a provisional arrest warrant should be made in England and Wales, he will direct a constable to make the application. (As there will be no warrant of arrest or order of conviction, it would be inappropriate for the Secretary of State to pass the request directly to the judicial officer.) Under subsection (3), where the Secretary of State considers the application for a provisional arrest warrant should be made in Scotland, he will transmit the request to the Scottish Ministers and the procurator fiscal will make the application.
Clause 4: Dealing with person arrested under provisional warrant20. This clause sets out what is to happen if a person is arrested under a provisional warrant; it reflects Article 92 of the Statute. The person must be brought as soon as is practicable before a competent court (defined in Clause 26 as a court consisting of an appropriate judicial officer). The court is required to remand him until such time as a Section 2 warrant is produced. If such a warrant is produced, the court will proceed as if the person concerned had been arrested under that warrant. If not, the person will be discharged; however, he can be subsequently re-arrested under a Section 2 warrant in accordance with Article 92.4.
21. Article 92.3 of the Statute does not specify the maximum length of time a person who has been provisionally arrested can be detained pending receipt of the ICC's request for surrender but instead provides for this to be specified in the ICC's Rules of Procedure and Evidence. The Rules have been drafted by the Preparatory Commission for the ICC and this time limit has been provisionally set, in Rule 188, at 60 days. However, the Rules, like various other subsidiary documents to the ICC Statute, will not be finally adopted until the first meeting of the Assembly of States Parties, which will not take place until 60 States have ratified the Statute. It therefore remains possible that the provision in Rule 188 might change. For this reason, subsection (4) requires the period of remand to be specified in the Order in Council which may be made, under Schedule 1, Paragraph 3, to give effect to the Rules of Procedure and Evidence.
Clause 5: Proceedings for delivery order22. This clause is intended to implement Article 59.2 of the Statute. Article 59.2 states that a person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) the warrant applies to that person; (b) the person has been arrested in accordance with the proper process; and (c) the person's rights have been respected. However, nothing in the Statute allows a State to refuse to surrender a person to the ICC on the grounds that the person has not been properly arrested or his rights have not been respected. The Government interprets the Statute as meaning that it will be for the ICC to determine the consequence of any violation of a person's rights or of proper procedure for his prosecution before the ICC. It would be open to the ICC, for example, to halt the prosecution on grounds of abuse of process or to award compensation.
23. Subsection (1) requires that the person arrested under a Section 2 warrant be brought before a competent court as soon as is practicable. Subsection (2) requires the court to make a delivery order if it is satisfied that the person before it is the person named in the warrant and that the warrant is from the ICC and has been duly endorsed or that the warrant has been duly issued under Clause 2.
24. As provided for in Article 89.2 of the Statute, subsection (4) allows the domestic court to adjourn surrender proceedings whilst a challenge is still pending before the ICC to the admissibility of the case or to the ICC's jurisdiction. Such a challenge could be made by the accused or by a State under Article 19 of the Statute. This subsection would apply, for example, if the person claimed that he had already been tried for the crime which the ICC wished to prosecute.
25. Article 59.4 states that it shall not be open to a domestic court to consider whether the warrant of arrest was properly issued by the ICC. Subsection (5) is intended to implement that obligation. Subsection (5) also provides that the competent court shall not consider whether there is evidence to justify the person's trial before the ICC.
26. Subsection (6) provides that the competent court may also determine whether the person has been lawfully arrested under the warrant and whether his rights have been respected. The court must make this determination if the person arrested applies for it to do so. Subsection (6), following Article 59.2, does not seek to spell out all the rights which the court may consider. If the domestic court determines that there have been violations of proper process or of the person's rights, subsections (8) and (9) state it shall make a declaration (or declarator in Scotland) which will be passed to the ICC. However, the court may not grant any other relief and this declaration will not affect the court's decision whether or not to issue a delivery order under subsection (2). This clause does not exclude any other procedure available under domestic law for the remedy of a violation of a person's rights.
Clause 6: Supplementary provisions as to proceedings before competent court27. Subsection (2) enables a competent court in England and Wales hearing proceedings under Clause 5 to exercise certain powers relating to the conduct of the proceedings, including to adjourn the case and remand the arrested person. It provides for criminal advice and assistance, and representation under the Criminal Defence Service to be extended to the arrested person during the delivery proceedings and, in the event of a discharge, for the arrested person's costs to be paid out of central funds. Subsection (3) makes similar provision with regard to proceedings under Clause 5 in Scotland. (With respect to proceedings before the ICC, an accused is entitled under Articles 55 and 67 of the Statute to legal assistance from the ICC, including assistance free of charge if he lacks sufficient means to pay for it.)
Clause 7: Consent to surrender28. This clause provides that where an arrested person gives written consent to surrender in the presence of a justice of the peace or, in Scotland, a sheriff, the competent court will make a delivery order and the person will be taken to have waived his rights to appeal against that order. This reflects the provision in Article 92.3 of the Statute.
Clause 8: Procedure where court refuses order29. This clause provides that if the competent court refuses to make a delivery order it must remand the person arrested and notify the Secretary of State (and, in Scotland, the Scottish Ministers). If the court is not informed without delay of an intention to appeal, the person concerned will be discharged. Otherwise, the person will remain on remand.
Clauses 9 and 10: Appeal against refusal of delivery order30. Clause 9 provides that, where the competent court in England and Wales refuses to make a delivery order, the Secretary of State may appeal against the refusal, on grounds of fact or law, to the High Court and then, with permission, to the House of Lords. If either the High Court or the House of Lords grants the appeal, it can make the delivery order or send the case back to the original court to do so. The person will remain on remand until the end of the appeal process. Clause 10 makes corresponding provision for Scotland.
Clause 11-12: Proceedings where court makes delivery order31. Clauses 11 and 12 set out the procedure to be followed when a competent court makes a delivery order. The court must notify the person of his right to seek a review of the order. It must also commit the person to custody or on bail to await the Secretary of State's directions as to how the order is to be executed and the practical arrangements for the transfer to the ICC or the State of enforcement. To allow the person time to consider seeking a review, these directions shall not be made for 15 days from the date of the order, unless he waives his right to seek a review (see Clause 13) or has already consented to surrender (see Clause 7). If he does make an application for habeas corpus (or, in Scotland, presents a Bill of Suspension), directions for the execution of the order are not to be made until proceedings on that application have been completed.
32. Subsection (4) of Clause 12 provides that the court hearing the application for review shall consider the same issues as the court which made the delivery order; subsections (2) and (4) to (9) of Clause 5 shall again apply (see paragraphs 23-26 above).
Clause 13: Waiver of right to review33. This clause permits a person to waive his right to seek a review of a delivery order. Waiver must be made in writing and in the presence of a justice of the peace or, in Scotland, a sheriff.
Clause 14: Effect of warrant of arrest34. This clause provides for the execution in any part of the UK of any arrest warrant endorsed or issued under this Part and for the legal custody of a person so arrested. The arrest warrant can be executed by any constable or any other person to whom it is directed (for example, an immigration official).
Clause 15: Effect of delivery order35. The purpose of this clause is to enable the execution of a delivery order. It provides that someone subject to a delivery order can be lawfully kept in custody pending or during the execution of the delivery order, whether in the UK or on board a British vessel or aircraft.
36. Subsection (3) grants the powers of a constable to a person authorised to carry out custodial duties in respect of a delivery order (such as the person designated to escort the person to the ICC or the State of enforcement) and provides for equivalent authority, protection and privileges.
37. Subsection (4) enables the arrest, without warrant, of someone subject to a delivery order who escapes. If, for example, someone escapes during transit to the ICC, a constable (including someone granted custodial powers under subsection (3)) has the authority to arrest the fugitive, keep him in custody and convey him into the custody of the ICC.
38. The reference in subsection (5)(b) is to persons such as transport police whose powers are limited to specific places.
Clauses 16 to 18: Bail and custody39. Article 59 of the ICC Statute deals with the question of interim release pending surrender (i.e. bail). The article provides that a person arrested at the request of the ICC has the right to apply for bail. It requires that the Pre-Trial Chamber of the ICC be notified of any application for bail and that the authority deciding the application give full consideration to any recommendations made by the Pre-Trial Chamber, including any on measures to prevent the escape of the person, before making its decision. Article 59.4 further requires that the authority consider whether, given the gravity of the alleged crime, there are urgent and exceptional circumstances to justify bail and whether necessary safeguards exist to ensure that the State can fulfil its duty to surrender the person to the ICC.
40. Clauses 16 and 18 are intended to implement these provisions of Article 59. Clause 16 provides that a court may grant bail if an application is made. Clause 18(1) and (2) provide for compulsory consultation with the ICC. Clause 18(3) requires the court to consider the matters specified in Article 59.4. Clause 16(2) applies the provisions of the Bail Act 1976 to proceedings under this part in England and Wales as if they were proceedings against a fugitive offender. This ensures that, in view of the very serious nature of the crimes involved, the court is obliged to take into account all of the relevant factors surrounding the bail application with no presumption in favour of, or against, granting bail.
41. Clause 17 covers various eventualities where a person has been granted bail in England and Wales. Subsections (3) to (5) deal with a situation in which a person, having been granted bail, surrenders to the custody of a constable shortly before the end of the period of remand. If the constable learns that the end of that period will be unexpectedly delayed, he will re-bail the person and set a new date for the person to surrender to custody. If the person fails to surrender at the appointed time, then the court which originally granted bail may issue an arrest warrant and, once the person is arrested, will reconsider whether bail is appropriate.
Clauses 19 and 20: Discharge of persons42. Clauses 19 and 20 provide for two different situations in which a person arrested under this Part may be discharged. Clause 19 grants a person subject to a delivery order the right to make an application for discharge if he has not been delivered up within 40 days of the order being made. The High Court, or High Court of Justiciary in Scotland, is required to order discharge if reasonable cause is not shown for the delay; this is to ensure that the right not to be subject to unnecessarily prolonged detention is respected. Clause 20 provides that a person must be discharged if the ICC informs the Secretary of State that the person's surrender is no longer required.
Clause 21: Request for transit43. It is possible that a prisoner being surrendered to the ICC by another State might need to transit the UK. To address this sort of situation, Article 89.3(a) obliges States Parties to authorise transport through their territory of a person being surrendered to the ICC by another State (except where such transit would impede or delay the surrender). Article 89.3(b) sets out what such an ICC request for transit must contain, including the warrant for arrest and surrender, and Article 89.3(c) requires the person being surrendered to be detained in custody during the period of transit.
44. Clause 21 is intended to implement the obligations under Article 89.3(a)-(c). It provides that, if the Secretary of State receives and agrees to a request for transit, the request will be treated as if it were an ordinary ICC request for arrest and surrender but, in view of the different circumstances, there will be an expedited process for transferring the person in question to the ICC. The person will be treated on arrival as if he had been arrested under an endorsed warrant, will not be granted bail, and, once the competent court has made a delivery order, he will be given only two days in which to make an application for review before the Secretary of State may issue directions for the person's delivery.
Clause 22: Unscheduled landing by person in transit45. It is possible that a person being surrendered to the ICC by another State might need to make an unscheduled landing in the UK. In the case of an unscheduled landing, Article 89.3(e) obliges a State to detain the person being transported until the request for transit is received from the ICC. The request for transmit must be received within 96 hours or the individual must be released.
46. Clause 22 is intended to implement the obligations under Article 89.3(e). The clause provides that, in such a case, the person being surrendered shall be arrested, brought before a competent court as soon as is practicable, and remanded in custody pending receipt of the ICC request. If no request for transit is received by the Secretary of State within 96 hours of the unscheduled landing, the person must be discharged. If a request is received from the ICC and the Secretary of State notifies the court that he has agreed to it, the person is to be treated as if a person in transit under Clause 21.
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