Clause 23: Provisions as to State or diplomatic immunity

47. Article 27 states that the Statute shall apply equally to all persons without any distinction based on official capacity and that immunities attaching to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person. Article 98.1 provides that the ICC may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the ICC can first obtain that third State's co-operation for the waiver of the immunity. These Articles mean that a State Party to the ICC Statute, in accepting Article 27, has already agreed that the immunity of its representatives, officials or agents, including its Head of State, will not prevent the trial of such persons before the ICC, nor their arrest and surrender to the ICC. But non-States Parties have not accepted this provision and so the immunity of their representatives would remain intact unless an express waiver were given by the non-State Party concerned to the ICC.

48. Subsection (1) of Clause 23 therefore provides that any state or diplomatic immunity attaching to a person by reason of his connection to a State Party will not prevent his arrest and surrender under this Bill if requested by the ICC. This may include a serving Head of State or Ambassador. As for persons with immunity as a result of their connection to a non-Party, subsection (2) provides that a waiver obtained by the ICC in relation to a request for that person's surrender, will be treated as extending to proceedings for his arrest and surrender under this Bill.

49. Subsection (4) provides that the Secretary of State may direct that proceedings for arrest and delivery shall not be taken against a person who has State or diplomatic immunities which, but for subsections (1) or (2), would have prevented such proceedings. The Secretary of State can do so only after consulting with the ICC and the State concerned.

50. If the United Nations Security Council, acting under Chapter VII of the UN Charter, refers a situation to the ICC for investigation and prosecution, the Security Council resolution might, depending on its wording, override any immunities attaching to representatives of all States, including non-Parties. Subsection (5) is intended to enable such a resolution to be implemented in this country.

Clause 24: Delivery up of persons subject to criminal proceedings etc.

51. This clause introduces Schedule 2 which applies where the ICC makes a request for arrest and surrender of a person who is also subject to domestic criminal, extradition or delivery proceedings, or is a prisoner. (Notes on Schedule 2 can be found at paragraphs 133-140 below.)

Clause 25: Documents having effect as warrants etc.

52. This clause provides that a copy or a faxed version of a warrant or other document shall be treated as if it were the original and shall be admissible in evidence.

53. Under Article 58.6, the ICC Prosecutor may ask the Pre-Trial Chamber to amend a warrant of arrest by modifying or adding to the crimes specified in it. Subsection (3) provides that the amended warrant shall be treated as if it were a new warrant, but that this does not affect the validity of anything done on the basis of the previous warrant.

Clause 26: Meaning of "appropriate judicial officer" and "competent court"

54. This clause defines "competent court" as a court consisting of the Senior District Judge (Chief Magistrate) or a designated District Judge (Magistrates' Courts), or the Sheriff of Lothian and Borders.

PART 3: OTHER FORMS OF ASSISTANCE

55. States Parties to the ICC are required to co-operate fully with the ICC in its investigation and prosecution of crimes within its jurisdiction. In particular, Article 88 requires States Parties to ensure that there are procedures available under national law for all the forms of co-operation which are specified under Part 9 of the Statute. The main forms of assistance, other than the arrest and surrender of suspects, are outlined in Article 93.1.

56. This Bill, but particularly this Part, is intended to implement the obligation under Articles 88 and 93.1. It provides a legislative basis, where one is required, for the Government to assist the ICC with its investigations or prosecutions. As in the Orders in Council through which the UK has implemented the UN Security Council resolutions which established the International Criminal Tribunals (S.I. 1996/716 and S.I. 1996/1296), no provision is made with regard to assistance which the Secretary of State can already provide to the ICC. For example, the Secretary of State is able, without further provision, to respond to ICC requests to protect victims and witnesses or to facilitate the voluntary attendance of expert witnesses, in the same way as is already done with regard to the Tribunals.

57. Part 3 extends to England, Wales and Northern Ireland. Only Clauses 32 and 39 extend to Scotland.

Clause 27: Provision of assistance

58. The reference in subsection (1) to investigations initiated and notconcluded by the ICC is intended to include investigations which have been deferred or suspended pursuant to Articles 18 and 19 of the Statute. Subsection (3) makes clear that the forms of assistance detailed in Part 3 are not exclusive and that nothing in this Part prevents other assistance being provided to the ICC.

Clause 28: Questioning of person being investigated or prosecuted

59. This clause relates to Article 93.1(c) whereby the ICC can ask the domestic authorities to question a person who the ICC is investigating or prosecuting. In accordance with Article 55.2, subsection (2) provides that a person shall not be questioned unless he has been informed of his rights under Article 55; these rights are reproduced in Schedule 3.

Clause 29: Taking or production of evidence

60. This clause applies where the Secretary of State receives an ICC request to take evidence on its behalf, including testimony on oath, or to secure the production of evidence. The Secretary of State may nominate a court to receive the evidence in question. The nominated court will have the same powers to secure the attendance of witnesses and the production of documents or other articles as it has in domestic cases.

Clause 30: Taking or production of evidence: further provisions

61. Subsection (2) provides that a court nominated under Clause 29 to take evidence for transmission to the ICC can sit in private if it considers it necessary in order to protect victims, witnesses or suspects, or to protect confidential or sensitive information. This is in line with the criteria in Article 64.7 under which the ICC can decide to sit in closed session.

Clause 31: Service of process

62. Another form of assistance which States Parties must provide is to serve documents, including judicial documents, on persons living in their territory (Article 93.1(d)). These can include a summons for a suspect to appear before the ICC, which the ICC Pre-Trial Chamber, under Article 58.7, may issue as an alternative to an arrest warrant. This clause makes provision for a summons or other document to be personally served on an individual in England, Wales or Northern Ireland.

Clause 32: Transfer of prisoner to give evidence or assist in investigation

63. Article 93.7 empowers the ICC to request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred only if he gives his consent. The Article also provides that the person being transferred shall remain in custody and shall be returned without delay when the purposes of the transfer have been fulfilled.

64. This clause enables implementation of an ICC request under Article 93.7 with respect to someone in custody anywhere in the UK. The effect of subsection (5) is that the person will remain in custody during his transfer to the ICC, any time spent at the ICC will be counted towards the completion of their domestic sentence, and, if he has yet to complete that sentence, he will be returned to the UK to do so.

Clause 33: Powers of entry, search and seizure

65. Under Article 93.1(g) and (h), the ICC can ask for sites to be examined and searches and seizures to be carried out on its behalf. This clause provides that, where the Secretary of State believes implementation of a request requires the exercise of powers of entry, search and seizure, he may direct a constable to apply for a warrant or order under Part 2 of the Police and Criminal Evidence Act 1984, or the equivalent Northern Ireland legislation. The references in that Act to a serious arrestable offence are to be taken to include an ICC crime.

Clause 34: Taking of fingerprints or non-intimate sample

66. The purpose of this clause and Schedule 4 is to enable the implementation of an ICC request, made under Article 93.1(a), to locate and identify an individual in whom the ICC has an interest. (Schedule 4 is explained in paragraphs 141-143 below.)

Clause 35: Orders for exhumation

67. Article 93.1(g) specifically allows the ICC to request the exhumation and examination of grave sites. This clause enables the implementation of such a request.

Clause 36: Provision of records and other documents

68. The ICC may request that a State Party provide records and documents, including official records and documents, pursuant to Article 93.1(i). Such a request would normally be able to be met without specific provision or under the powers in Clauses 29 and 33. This clause is intended to ensure that the request can also be met in the particular case where the ICC is requesting information about previous domestic proceedings or investigations in respect of conduct which would constitute an ICC crime.

Clauses 37 and 38: Assistance in investigating the proceeds of ICC crime

69. Article 93.1(k) specifies that the ICC may request assistance in

the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties.

70. Clauses 37 and 38 together make provision for such requests to be carried out. Clause 37 provides that, where the ICC requests assistance in ascertaining whether a person has benefited from an ICC crime or in identifying property derived from an ICC crime, the Secretary of State may direct a constable to apply for an order or warrant under Schedule 5. Clause 38 provides that, where the ICC requests assistance in the freezing or seizure of property for possible forfeiture, the Secretary of State may direct a person to apply for a freezing order in accordance with the provisions of Schedule 6. (Notes on Schedules 5 and 6 can be found in paragraphs 144-153 below.)

Clause 39: Matters prejudicial to national security

71. This clause provides that nothing in this Part or in the corresponding provisions of any Act of the Scottish Parliament requires or authorises documents or information to be disclosed where this would be prejudicial to national security. This clause must be read in light of the obligations of a State Party under the ICC Statute. Under Article 93.4 of the Statute, a State Party may deny a request for assistance, in whole or part, if the request concerns the production of any documents or disclosure of evidence which would be prejudicial to its national security interests. If such an issue arises, Article 72 sets out the procedure to be followed and the obligations of the State Party, including to take all reasonable steps to seek to resolve the matter through co-operation with the ICC. It also provides that, if no solution permitting the disclosure of that information is reached and the ICC determines that the evidence is relevant and necessary, the ICC may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

PART 4: ENFORCEMENT OF SENTENCES AND ORDERS

72. Whereas Part 3 provides for implementation of ICC requests during investigations and proceedings, Part 4 provides for the enforcement of ICC sentences and orders made following conviction. The sentences and orders are of two different types. A State Party is obliged to implement orders for fines, forfeitures and reparations that the ICC may make against a convicted person. However, a State Party is not obliged to accept persons convicted by the ICC ("ICC prisoners") to serve their sentences in its prisons. Instead, under Article 103.1, a State may indicate to the ICC its willingness to accept ICC prisoners and can attach conditions to its acceptance. Once the ICC hands down a prison sentence and that sentence is no longer subject to appeal, the ICC will designate a State of enforcement among those States who have volunteered and the State shall inform the ICC if it accepts that designation.

73. The Government envisages reaching an enforcement of sentences agreement with the ICC. This Part sets out the provisions which would apply where the Secretary of State has agreed to an ICC request that a prisoner serve his sentence in the UK. With the exception of Clause 49 (relating to other orders), Part 4 extends to Scotland.

Clause 42: Detention in the United Kingdom in pursuance of ICC sentence

74. This clause applies where the Secretary of State has accepted the designation by the ICC of the UK as the State of enforcement with regard to a specific person. Under subsection (2) he will consult with the Scottish Ministers if he considers it may be appropriate for the person to serve his sentence in Scotland. The relevant Minister - the Secretary of State or, in Scotland, the Scottish Ministers - will then issue a warrant authorising the person to be brought to the relevant part of the UK. The Secretary of State's warrant will authorise the detention of the prisoner in England, Wales or Northern Ireland. It is envisaged that the corresponding Scottish legislation will make provision for a warrant authorising the detention of the prisoner in Scotland.

75. Subsection (4) provides that where the prisoner is detained in England, Wales or Northern Ireland, he shall be treated in the same way as a domestic prisoner serving a sentence of imprisonment imposed by a court in that part of the UK for a similar offence. The conditions of the ICC prisoner's detention are to be the same as those for domestic prisoners, except that, by virtue of Schedule 7, the domestic provisions concerned with the early release of prisoners or which affect the length of sentence are disapplied. Articles 105 and 110 of the Statute make clear that consideration of early release or reduction in sentence will be a matter for the ICC alone. If the ICC itself subsequently amends the sentence imposed on the person, subsection (3) enables the domestic warrant to be amended accordingly.

76. Subsection (5) disapplies the provisions of the Repatriation of Prisoners Act 1984 to ICC prisoners, as the transfer of ICC prisoners between States is to be determined by the ICC under Article 104. The subsection also disapplies Schedule 1 to the Crime (Sentences) Act 1997 because Clauses 44 and 45 make separate provision for the transfer of prisoners between different parts of the UK (but see Clause 46).

Clause 43: Temporary return or transfer of custody to another state

77. This clause enables the temporary transfer of an ICC prisoner to and from the ICC, for example, to testify at another trial (as provided for in Rule 193 of the finalized draft Rules of Procedure and Evidence). It also enables the transfer of custody to any other State to which the ICC, under its power in Article 104, may decide to transfer the prisoner. The Secretary of State or, if the prisoner is being detained in Scotland, the Scottish Ministers will make the necessary arrangements.

Clauses 44 and 45: Transfer to another part of the UK

78. Clause 44 enables the transfer of a prisoner from one part of the UK to another to serve the remainder of the ICC sentence. The warrant under which he is being detained will continue to have effect. Clause 45 provides for the temporary transfer of the prisoner in custody between UK jurisdictions, including Scotland, for example, for the purpose of attending criminal proceedings against him or for testifying at another trial. Under both clauses, transfer between Scotland and the rest of the UK requires the prior agreement of the relevant Minister in the receiving part of the UK.

Clause 46: Domestic sentence current at end of term of ICC sentence

79. This clause makes provision in respect of prisoners who have completed a term of imprisonment imposed by the ICC but who are still subject to an ordinary domestic sentence (including a sentence imposed for an offence committed during imprisonment under the ICC sentence). If that prisoner has been transferred under Clause 44 or 45 to a different part of the UK than that in which the domestic sentence was imposed, the provisions of the Crime (Sentences) Act 1997 will apply as if he was subject to a restricted transfer under Schedule 1 to that Act. The relevant Minister may also impose conditions in that case.

Clause 47: Custody of prisoner in transit etc.

80. This clause enables an ICC prisoner to be held in lawful custody by domestic authorities whilst outside prison, whether he is in the UK or on board a British vessel or aircraft. This would include, for example, while the prisoner is in transit between the UK and the ICC. Subsection (4) grants the powers of a constable to a person designated by the Secretary of State to take the prisoner to or from any place, or to keep the prisoner in custody, and provides for equivalent authority, protection and privileges.

81. Subsection (5) allows the arrest of any ICC prisoner who escapes or is unlawfully at large, including an ICC prisoner who escapes from prison in any part of the UK. Any constable (including someone granted custodial powers under subsection (4)), has the authority to arrest the fugitive prisoner without warrant.

Clause 49: Power to make provision for enforcement of other orders

82. Under Articles 77.2 and 70.3, in addition to a sentence of imprisonment, the ICC can impose on a convicted person a fine and a "forfeiture of proceeds, property and assets derived directly or indirectly from" the crime for which the person has been convicted. Moreover, under Article 75, the ICC may

make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.

83. Clause 49 empowers the Secretary of State to make regulations to enforce fines, forfeitures or reparation orders issued by the ICC against a convicted individual. The procedure will broadly follow that established in the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 1991 (S.I. 1991/1463). The regulations may provide that, on receiving any such order, the Secretary of State will appoint a person to act on the ICC's behalf. The regulations will provide for the registration of the order and may provide for it to be enforced as if it were an order of a domestic court. The regulations may be different for different types of orders.

84. Subsection (5) provides safeguards in respect of persons with an interest or rights in property affected by such an order. This is in accordance with the Statute; Article 109.1, for example, provides that States Parties shall give effect to fines and forfeitures "without prejudice to the rights of bona fide third parties".

PART 5: OFFENCES UNDER DOMESTIC LAW

85. Part 5 incorporates the offences in the ICC Statute into domestic law. This is not an obligation under the ICC Statute (except in respect of offences against the administration of justice of the ICC). Rather the purpose is to ensure that domestic authorities will always be in a position to investigate and, if necessary, prosecute ICC crimes allegedly committed by UK nationals, persons resident in this country and UK service personnel. Under the principle of "complementarity", the ICC cannot commence an investigation into such allegations if they have been dealt with properly by a State Party.

86. Part 5 extends to England and Wales, and Northern Ireland. Clauses 50(3) and (4), 70 and 71 to 73 also extend to Scotland.

Clause 50: Meaning of "genocide", "crime against humanity" and "war crime"

87. Subsection (1) provides that genocide, crimes against humanity and war crimes shall be as defined in the relevant Articles of the ICC Statute, i.e. Articles 6, 7 and 8.2, which are set out in Schedule 8. Subsection (6) provides that no account is to be taken for the purposes of Part 5 of provisions of those Articles not included in Schedule 8 (see paragraph 158 below).

88. Subsection (2) provides that, when trying these offences, domestic courts must take into account any relevant Elements of Crimes adopted by the Assembly of States Parties in accordance with Article 9 of the Statute. To enable domestic courts effectively to prosecute offences under this clause even before the Assembly of States Parties meets, subsection (2)(b) requires domestic courts to take into account the finalized draft Elements of Crimes adopted by the Preparatory Commission for the ICC on 30 June 2000. The finalized draft Elements and subsequently the adopted Elements will be set out in regulations made by the Secretary of State.

89. Subsection (4) provides that any relevant reservations or declarations made by the UK when ratifying any treaty or agreement relevant to the interpretation of Articles 6, 7 or 8 shall be used by the courts to interpret those Articles. Such reservations or declarations will be set out in Orders in Council. This provision follows the precedent of Section 7(3) of the Geneva Conventions Act 1957 as amended by the Geneva Conventions (Amendment) Act 1995. Statements made on ratification of Additional Protocol I to the Geneva Conventions are examples of declarations coming within this clause.

90. Subsection (5) provides that in trying offences, domestic courts must take into account any relevant jurisprudence or decision of the ICC and may also take into account any relevant international jurisprudence. The latter would include any relevant jurisprudence of the International Criminal Tribunals and the International Court of Justice.

Clause 51: Genocide, crimes against humanity and war crimes

91. This clause is intended to incorporate the offences of genocide, crimes against humanity and war crimes as defined in the Statute into the law of England and Wales. Courts will have jurisdiction over these offences when committed in England and Wales, or when committed overseas by UK nationals, UK residents or persons subject to UK Service jurisdiction. UK nationals, UK residents and persons subject to UK Service jurisdiction are defined in Clause 67.

92. Subsection (1) establishes domestic offences of genocide, war crimes and crimes against humanity. Almost all of the acts falling within these definitions would already be crimes if committed in the UK, although attracting different penalties from those provided for in this Bill, but would generally not be crimes if committed by UK nationals or UK residents overseas.

93. The crime of genocide is already an offence in domestic law by virtue of the Genocide Act 1969 but the jurisdiction provided for in that Act is more limited than is provided for in this Bill. The Genocide Act is repealed under Schedule 10. Certain war crimes within the definition of Article 8 (notably, grave breaches of the Geneva Conventions) also constitute existing domestic offences in identical terms. However, as the Geneva Conventions Act 1957 takes wider jurisdiction than this Bill and, by virtue of the Geneva Convention (Amendment) Act 1995, also covers grave breaches of Additional Protocol I of the Geneva Conventions, it will remain in force subject to the amendments specified in Clause 70 (see paragraph 110 below).

Clause 52: Conduct ancillary to genocide, etc. committed outside jurisdiction

94. This clause criminalises conduct in England and Wales (or that of a UK national, UK resident or person subject to UK Service jurisdiction abroad) that is ancillary to an act which, if committed in England and Wales, would constitute an offence under Clause 51 or under this clause but which being committed (or intended to be committed) outside England and Wales does not constitute such an offence. For example, it will be an offence under this clause to incite, in England and Wales, the commission of genocide overseas even if the perpetrators have no connection with the UK. It would also be an offence if such incitement took place overseas but was committed by a UK national, UK resident or a person subject to UK Service jurisdiction.

Clause 53: Trial and punishment of main offences

95. This clause makes provision for trying the offences of genocide, crimes against humanity and war crimes, offences under Clause 52, and offences that are ancillary to such offences. Subsections (5) and (6) set out the sentences which the domestic courts may impose for the new domestic offences created by the Bill. If the offence involves murder, the sentence will be the same as if the offender had been found guilty on a domestic charge of murder; the same is true for offences ancillary to an offence involved murder. In any other case, the penalty will be imprisonment of up to 30 years. This is in line with Article 77 of the Statute, under which the ICC can impose prison sentences of life, or up to 30 years. Under the Power of Criminal Court (Sentencing) Act 2000 and the Criminal Justice Act 1988, it may, in certain circumstances, also be open to the court to impose a fine and order compensation or to make a confiscation order in respect of the offender's proceeds of crime.

Clause 54: Offences in relation to the ICC

96. This clause extends existing offences against the administration of justice (e.g. contempt of court) to acts committed against the administration of justice of the ICC. The clause is intended to implement Article 70.4 of the Statute, which requires a State Party to the ICC to

"extend its criminal laws penalising offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article committed on its territory, or by one of its nationals".

The offences against the administration of justice of the ICC are set out in Article 70.1 (reproduced in Schedule 9). Upon request by the ICC, the State Party is obliged to submit a case to its competent authorities for the purpose of prosecution.

97. Subsection (3) sets out the domestic offences corresponding to those in Article 70.1. These include false testimony (section 1 of the Perjury Act 1911), interference with witnesses or evidence (section 51 of the Criminal Justice and Public Order 1994 or at common law), and certain offences at common law including perverting the course of justice and contempt of court. For instance, it is a contempt under common law to bribe a court official, or to take or threaten revenge upon a court official for what he has done in the discharge of his duties.

98. Domestic courts will have jurisdiction when such offences are committed in England and Wales or when committed overseas by UK nationals, UK residents or persons subject to UK Service jurisdiction (subsection (4)). The penalties available will be the same as are otherwise available for the relevant domestic offence.

99. Subsection (2) provides that, in trying these offences, the domestic court shall take into account relevant jurisprudence of the ICC and may also take into account any other relevant international jurisprudence (e.g. that of the International Criminal Tribunals).