House of Commons - Explanatory Note
International Criminal Court Bill [Hl] - continued          House of Commons

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Clause 55: Meaning of "ancillary offences"

100. This clause defines ancillary offences for the purposes of this Part. They include the forms of secondary liability in Article 25.3 of the Statute but are defined in terms of the principles of secondary liability under the law of England and Wales.

Clause 56: Saving for general principles of liability

101. The Statute sets out certain general principles of law to be followed by the ICC in its proceedings. Although these are mostly similar to those applicable under the law of England and Wales, there are some differences. Therefore, for consistency with other parts of national criminal law, subsection (1) provides that the domestic courts will apply the principles of the law of England and Wales in trying offences under this Part.

102. Subsection (2) preserves existing enactments and rules in respect of the extraterritorial application of offences and in respect of offences ancillary to offences under this Part. For example, the provision for extraterritorial jurisdiction over grave breaches of the Geneva Conventions, under the Geneva Conventions Act 1957, is unaffected. Existing principles of secondary liability apply in relation to offences created under Part 5 of the Bill.

Clause 57: Protection of victims and witnesses

103. This clause extends the protections currently afforded to victims and witnesses of sexual offences under the Sexual Offences (Amendment) Acts 1976 and 1992, Chapters 1 to 3 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 and the Sexual Offences (Protected Material) Act 1997 to victims and witnesses in proceedings brought under the Bill. Such protections include the entitlement of anonymity, restrictions on the freedom of defendants to cross-examine their alleged witnesses personally and restrictions on what evidence about an alleged victim's sexual behaviour can be considered relevant in a trial. These protections will apply when a prosecution under this Bill relates to conduct amounting to the criminal offences specified in those Acts as attracting such protections. So, for example, where an individual is prosecuted for a crime against humanity under Clause 51 that involves a rape, the alleged victim will be entitled to all the protections that would have been afforded to her under the specified statutory provisions had the defendant been prosecuted for rape rather than for a crime against humanity.

Clauses 58 to 64: Northern Ireland

104. Clauses 58 to 64 apply provisions to Northern Ireland comparable to Clauses 51 to 57 with regard to England and Wales.

Clause 65: Responsibility of commanders and other superiors

105. This clause provides for an additional form of criminal responsibility, namely that of commanders and superiors for the acts of their subordinates. The wording of this clause is taken directly from Article 28 of the Statute. The wording draws a distinction between the standards expected of military and quasi-military commanders in relation to military forces under their command, and other superior/subordinate relationships such as government officials or heads of civilian organisations, as it is recognised that the latter may not have the same degree of control over the actions of their subordinates. This is a well known concept of international law and was reflected in the jurisprudence of the Nuremberg and Tokyo Tribunals. As well as the ICC Statute, it also appears in the Statutes of the Tribunals for the former Yugoslavia and Rwanda. It reflects the hierarchical structure of military and administrative control over subordinates in the context of these crimes. Inclusion of command responsibility with respect to the crimes in this Part of the Bill is intended to permit the investigation and prosecution of cases before domestic courts in all the circumstances where the ICC might found a case on that basis.

106. Subsections (4) and (6) make plain that liability under this provision is a form of aiding and abetting and does not preclude any other liability that the commander or superior might have, for example where the commander has in fact ordered the commission of the offences.

Clause 66: Mental Element

107. This clause reflects Article 30 of the Statute. It provides a general rule that, unless otherwise provided, the necessary mental element of an offence is present if the material elements of genocide, a crime against humanity, a war crime or an offence against the administration of justice are committed with intent and knowledge. "Intent" and "knowledge" are explained in subsection (3).

108. In accordance with Article 30, subsection (2) provides that this general rule shall not apply where an alternative mental element is specified in certain provisions of the Statute, certain provisions of the Bill or in any of the relevant Elements of Crimes. An example is to be found in the finalized draft Elements of Crimes in respect of Article 8(2)(b)(xxvi) (conscripting or enlisting children) where it is required that the perpetrator "knew or should have known" of the age of the child concerned.

Clause 67: Meaning of "United Kingdom national", "UK resident" and "person subject to UK service jurisdiction"

109. Subsection (3) defines a "person subject to UK Service jurisdiction" by reference to the various Service Discipline Acts. Such persons are within the jurisdiction of Service courts and may be tried for offences under Service law, wherever they may be in the world at the time the offence is committed. This mainly involves Service personnel but may also, in the circumstances specified in the Service Discipline Acts, include certain categories of civilians, such as families and certain civilians who carry out support facilities for the Armed Forces.

Clause 68: Proceedings against persons becoming resident within the jurisdiction

109. This Bill follows the War Crimes Act 1991 and the Sex Offenders Act 1997 in providing for jurisdiction over crimes committed overseas by someone resident in the United Kingdom. This (and other references to "resident") applies irrespective of whether the person is also resident in any other country. Clause 68 stipulates that proceedings can be taken under this Part against persons who become resident in the UK subsequent to the offence taking place, provided that they are resident here at the time the proceedings are brought and the offence was committed after this Act came into force.

Clause 70: Offences under section 1 of the Geneva Conventions Act 1957

110. This clause makes various amendments to the Geneva Conventions Act to ensure that provisions governing the prosecution of grave breaches of the Geneva Conventions under that Act are consistent with those governing the prosecution of offences under this Bill. The amendments relate to where the trial shall be held, the need for Attorney General's consent to prosecutions, and the sentence available on conviction.

Clause 71: Extradition: Orders in Council under the 1870 Act

111. This clause has the effect of making the offences set out in Clauses 51, 52, 58 and 59 of the Bill, and any offence ancillary to any such offence, extraditable under Schedule 1 to the Extradition Act 1989. Schedule 1 to the Extradition Act 1989 covers extradition with countries with which the United Kingdom has a bilateral extradition treaty which was in force prior to the coming into force of the 1989 Act. (As a result of section 2(1) of the Extradition Act 1989, these offences are automatically extraditable in relation to a foreign State, a designated Commonwealth country, a colony or the Hong Kong Special Administrative Region as offences which are punishable for a term of imprisonment of 12 months or more.)

112. As extradition is a reserved matter for the purposes of the Scotland Act, these provisions and those in Clause 72 and 73 apply to any corresponding offence under Scottish law.

Clause 72: Extradition: exception to dual criminality rule under the 1989 Act

113. Section 2 of the Extradition Act 1989 defines what is an extradition crime for cases dealt with under Part 3 of that Act (i.e. all extradition arrangements excluding bilateral extradition treaty partners where the treaty was in force prior to the 1989 Act coming into force). Clause 72 amends Section 2 and has the effect of disapplying the principle of dual criminality as it relates to extra-territorial offences. (Dual criminality means that extradition can only be granted when the offence at issue is a crime both here and in the requesting country at the time the offence was committed). This change thus permits extradition to a third country which has extra-territorial jurisdiction for the offences in Clauses 51, 52, 58 and 59 and any offence ancillary to those offences in cases when the UK does not. Subsection (5) of Clause 71 is intended to achieve the same result in respect of Schedule 1 to the Extradition Act 1989.

Clause 73: Extradition: offences not regarded as of political character etc.

114. Section 23 of the Extradition Act 1989 provides that an offence of genocide, or an ancillary offence to the offence of genocide, shall not be regarded as an offence of political character for the purposes of extradition. It also provides that extradition can take place for these offences even if they were not offences at the time and place where they were allegedly committed. Clause 73 amends Section 23 to broaden this provision to include all the offences in Clauses 51, 52, 58 and 59 of this Bill, ancillary offences in relation to these offences, and the offences under Section 1 of the Geneva Conventions Act 1957. It also amends the equivalent provision of the Backing of Warrants (Republic of Ireland) Act 1965.

Clause 74: Consequential amendments of armed forces legislation

115. This clause deals with restrictions on the exercise of Service jurisdiction. In recognition of the primacy of civil courts, Service courts are prevented by law from exercising jurisdiction over certain serious offences when they are committed in the UK. The list currently includes murder, manslaughter and rape as well as certain offences relating to international law such as genocide and any offence under Section 1 of the Biological Weapons Act 1974. Consistent with this approach, this clause provides that offences under this Bill may not be dealt with by Service courts if committed in the UK. This does not affect the jurisdiction of Service courts to deal with offences committed overseas.


116. This Part has UK-wide extent.

Clause 77: Application of provisions to other International Tribunals

117. The effect of subsections (1) and (2) is that State or diplomatic immunity will not prevent the arrest and surrender of a person indicted by either of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

118. The effect of subsection (3) is that the UK can accept prisoners from either of the two Tribunals to serve their sentences in domestic prisons. This would be subject to the UK reaching an enforcement of sentences agreement with that Tribunal.

119. Should the Security Council establish any future Tribunals along the lines of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the relevant Security Council resolution will be given effect to by an Order in Council under the United Nations Act 1946. Subsection (4) provides that such an Order in Council may include provisions to allow for the arrest and surrender of persons with State or diplomatic immunity and to enable convicted persons to serve their sentences in domestic prisons.

Clause 78: Crown application

120. This clause specifies that the Bill binds the Crown.

Clause 79: Extent

121. Subsection (1) lists those provisions which do not extend to Scotland.

122. Subsection (5) is included because jurisdiction under the Service Discipline Acts is personal rather than geographical. A person subject to Service jurisdiction may be proceeded against under that jurisdiction for an offence wherever in the world it is committed. It is therefore necessary to extend the geographical limits of the Bill so that Service courts are able to exercise jurisdiction even when sitting outside the UK.

Clause 80: Power to make provision in relation to Scotland

123. The clause enables the Secretary of State, by statutory instrument, to make modifications or adaptations of this Bill so that it dovetails properly with the corresponding Scottish legislation and ensures that the UK is able to fulfil its obligations under the ICC Statute.


124. Schedule 1, which covers a variety of ICC-related provisions, extends to Scotland.

Paragraph 1: Legal capacity, privileges and immunities

125. This paragraph enables subordinate legislation to be made to confer privileges and immunities on the ICC, the judges and other persons connected with the Court, in accordance with the obligations under Article 48 of the Statute and any other relevant international agreements entered into by the UK. An agreement on the privileges and immunities of the ICC will be adopted at the first meeting of the Assembly of States Parties.

Paragraph 2: Power to provide for sittings of the ICC in the UK

126. Under Article 3, the seat of the ICC shall be in The Hague but the ICC may sit elsewhere, whenever it considers it desirable. This is elaborated in Rule 100 of the draft Rules of Procedure and Evidence which provides that the ICC may sit elsewhere in a particular case where to do so would be in the interests of justice; this is subject to the agreement of the State where the ICC intends to sit. This paragraph enables subordinate legislation to be made to enable the ICC to sit in the UK in the event that it wished to do so.

Paragraph 3: Power to give effect to Rules of Procedure and Evidence

127. The Rules of Procedure and Evidence have been drafted by the Preparatory Commission for the ICC and will be adopted by the first Assembly of States Parties, in accordance with Article 51 of the Statute. This paragraph enables secondary legislation to give effect to any of the Rules if they require implementation in the UK; an example is in Clause 4(4) (see paragraph 19 above).

Paragraph 4: Parliamentary approval of draft Orders

128. Since the Orders made under Paragraphs 1 to 3 will extend to Scotland, this paragraph provides that they shall only be made with the consent of both Houses of Parliament and the Scottish Parliament.

Paragraph 7: Pension provision for UK judges of ICC

129. The purpose of this paragraph is to eliminate a possible disincentive to UK judges standing for election to the ICC. It provides that, in the event that the ICC itself makes no pension provision for judges of that court, the Lord Chancellor (or the Secretary of State) has powers to ensure that a UK judge appointed to the ICC is no worse off for pension purposes than he would have been had he continued to serve in his UK judicial office. The question of whether pension provision will be agreed internationally for ICC judges has yet to be settled and will not be settled definitely until the first meeting of the Assembly of States Parties.

130. Sub-paragraph (1) creates an order making power for the Lord Chancellor (or the Secretary of State in relation to a person holding judicial office in Scotland) in order to secure the pension position of a UK judge sitting on the ICC. Sub-paragraph (2) provides that such an order may provide for a judge to remain a member of his existing UK pension scheme (sub-paragraph (2)(a)) or that other appropriate arrangements can be made (sub-paragraph (2)(b)).

131. Sub-paragraph (3), (4) and (5) give additional detail as to what an order made by virtue of sub-paragraph (2)(a) may contain. Sub-paragraph (3) provides that a judge who remains in his UK pension scheme may do so on the same terms as if he had not been appointed to be a judge of the ICC. By way of securing this outcome, it further provides that the pension benefits payable to him will be based on the salary he would have been entitled to receive for the UK judicial office which he would continue to hold by virtue of Section 68 of the Access to Justice Act 1999, were it not for Section 68(3)(a) of that Act. Sub-paragraph (4) enables the order to provide that the contributions towards dependants' benefits payable under the judicial pension scheme of a judge who remains in a UK pension scheme will continue to be paid by the judge; and that these contributions will be collected under such arrangements as are laid down by the administrators of the scheme. Sub-paragraph (5) provides that the order has effect notwithstanding section 68(3)(b) of the Access to Justice Act 1999 (which provides that a seconded judge will not receive pension benefits under a UK judicial pension scheme whilst working for an international court). Sub-paragraph (5) also gives the Lord Chancellor power to amend as necessary the provisions of the judicial pensions Acts to give effect to the provisions of this paragraph.

132. Sub-paragraph (6) provides for any benefits payable by virtue of an order under sub-paragraph (2)(b) to be paid directly from the Consolidated Fund (that is, not from the Departmental Vote) in the same way as other judicial pension benefits.


133. The ICC may request the surrender of a person even if he is already before the UK courts or is serving a prison term. This schedule sets out how such a situation would be dealt with.

Part 1: Criminal Proceedings

134. Article 89.4 of the Statute states that:

If a person sought is being proceeded against or is serving a sentence in the requested state for a crime different from that for which surrender to the [ICC] is sought, the requested State, after making its decision to grant the request, shall consult the [ICC].

The purpose of the consultations would be determine when and how the surrender will take place. There may be circumstances in which the ICC agrees to allow the domestic proceedings to be completed before the person's surrender. An example might be if a lengthy domestic trial is close to completion or involves sensitive witnesses or evidence which might not be available if the trial is postponed.

Paragraphs 2 to 4: Criminal proceedings

135. Paragraph 2 is intended to implement Article 89.4 where criminal proceedings are taking place in England and Wales or Northern Ireland; paragraphs 3 and 4 make equivalent provision where the criminal proceedings are before a Scottish or a Service court respectively. Paragraph 2 sets out what is to happen if, when the Secretary of State receives a request from the ICC for arrest and surrender, the person concerned is already undergoing criminal proceedings. The Secretary of State will inform the relevant court which will, if necessary, adjourn its proceedings so that proceedings under Part 2 can take place to determine whether the person should be delivered up. If a delivery order is made and the criminal proceedings are still pending or in progress, the Secretary of State is required to consult the ICC. If the ICC wishes to go ahead immediately with the person's surrender, the Secretary of State will direct that the domestic proceedings be discontinued and the delivery order be executed. The discontinuance of the domestic proceedings is without prejudice to the possible institution of fresh proceedings at a later date.

Paragraph 5: Effect on custodial sentences

136. This paragraph provides that terms of imprisonment or detention imposed by a domestic court must still be served even if a person is delivered up to the ICC (sub-paragraph 5(1)) or discharged after delivery proceedings (sub-paragraph 5(2)). The time spent by that person in the custody of the ICC or another State of enforcement will count towards the completion of his domestic sentence. If that domestic sentence is not completed by the time the person is either acquitted by the ICC or completes any term of imprisonment imposed by the ICC, he shall be returned to serve out that sentence. Sub-paragraph (4) requires the Secretary of State to consult the Scottish Ministers in the case of prisoners serving sentences in Scotland.

Paragraph 6: Power to suspend or revoke other orders

137. This paragraph gives the competent court which has made a delivery order power to make sure that its order is executed, including by suspending or revoking any other warrant, order or sentence (other than imprisonment, which is dealt with in Paragraph 5) made by any domestic court. Paragraphs 10 and 14 make similar provision with particular regard to cases where the person to be delivered up at the request of the ICC is also subject to an order for extradition or for delivery to another International Tribunal; again the competent court has the power to suspend or revoke any such order to enable the delivery order under this Bill to be executed.

Part 2: Extradition Proceedings

138. Article 90 sets out in detail what a State Party is to do if it receives a request from the ICC for the surrender of a person and also receives a request from a State for that person's extradition, whether or not the extradition request relates to the same conduct which the ICC is investigating. In summary, the State Party must give priority to the ICC request unless the country requesting extradition is a non-Party and the requested State is under an existing international obligation to extradite the person to that non-Party. In that exceptional case, Article 90 says that the State Party shall decide whether to surrender the person to the ICC or extradite him to the requesting State after considering all relevant factors, including those stipulated in Articles 90.6 or, as the case may be, 90.7(b).

139. Paragraph 8 is intended to implement Article 90 in England and Wales and Northern Ireland; Paragraph 9 makes equivalent provision for Scotland. Under Paragraph 8, if the ICC requests the arrest and surrender of a person already subject to extradition proceedings, the Secretary of State will notify the court hearing the extradition proceedings of the request. That court will, if necessary, adjourn its proceedings so that proceedings under Part 2 of this Bill can take place to determine whether the person should be delivered up. If a delivery order is made and the extradition proceedings are still pending or in progress, the Secretary of State is obliged to consult the ICC. Depending on the outcome of those consultations, the Secretary of State may direct that the extradition proceedings be discontinued and the delivery order be executed. The discontinuance of the extradition proceedings is without prejudice to the possible institution of fresh extradition proceedings at a later date.

Part 3: Other Delivery Proceedings

140. Paragraphs 11 to 14 deal with the highly exceptional situation in which an accused is wanted by both the ICC and one of the International Criminal Tribunals. In such a case, the UK would be under an international obligation to surrender to both bodies. If such a situation were to arise, paragraphs 12 and 13 require the Secretary of State to consult both the ICC and the Tribunal. In practice, it is expected that the ICC and the Tribunal would reach an agreement as to whose request is to take priority.


141. Under Article 93.1(a), the ICC can ask a State Party for assistance in identifying an individual in whom it has an interest. Schedule 4 is intended to enable the taking of evidence necessary for identification where alternative means of responding to such an ICC request have been exhausted.

142. Where the Secretary of State receives an ICC request to identify an individual, Paragraph 1 provides that other means of identification must be tried first. If they prove inconclusive, the Secretary of State is to inform the ICC. If the ICC nonetheless wishes to proceed with the request, the Secretary of State may nominate a court for the purpose of obtaining the evidence necessary for identification, which may include fingerprints and/or a non-intimate sample (such as a strand of hair). The court may order the person to attend to provide the specified evidence and if he fails to comply, the court may order his arrest for this purpose and the evidence may be taken without his consent.

143. Paragraph 7 provides that evidence obtained under this Schedule may only be used for the purpose of an ICC investigation or a domestic investigation under Part V of this Bill. Paragraph 8 applies Section 64 of the Police and Criminal Evidence Act 1984 with relation to the destruction of the evidence obtained under this Schedule.


144. Schedule 5 applies where the ICC has made a request for assistance in ascertaining whether a person has benefited from an ICC crime or in identifying property derived from an ICC crime and the Secretary of State has directed the constable to apply for an order or warrant under Clause 37.

Part 1: Production or access orders

145. Part 1 sets down the provisions which govern the making of court orders or warrants for the production of, or access to, material. It is substantially based on the powers which already exist under section 93H of the Criminal Justice Act 1988. That section allows a constable, for the purposes of an investigation into whether any person has benefited from any criminal conduct or into the extent or whereabouts of the proceeds of such conduct, to apply to a Circuit judge for an order for the production of, or access to, particular material or material of a particular description.

146. Paragraph 3 provides that a standard production or access order will require a named individual to either produce specified material or material of a specified description to a constable (production order) or give the constable access to this material (access order). The material should be produced within a specified period (normally seven days, although this can be shortened or lengthened by the judge if this is deemed appropriate in the circumstances). Paragraph 4 provides that a special production or access order may be made in relation to a person who the judge thinks is likely to have material to which the application relates in his possession within 28 days of the making of the order. Such an order will require a named individual to notify a constable when that material comes into his possession. This provision will allow for information that will come either into a person's possession or into existence in the future to be obtained quickly. It is substantially based on Schedule 5 of the Terrorism Act 2000.

147. Part 1 goes on to detail procedural provisions and the effect of the order, in particular how the order relates to existing legislation, specifically the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989.

Part 2: Search Warrants

148. Part 2 is based substantially on the provisions in section 93I of the Criminal Justice Act 1988. Paragraph 10 sets out the circumstances in which a search warrant may be issued. Sub-paragraph (2) allows for a warrant to be issued if it appears that a production or access order has not been complied with. Sub-paragraph (3) allows for a warrant to be issued in circumstances where there are grounds for making a production or access order and, for example, there is a lack of communication with those who may be able to grant access. Sub-paragraph (4) makes provision for a search warrant to be issued in circumstances where more general material relating to an ICC crime is sought, when this material is likely to be of substantial value to the investigation.

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Prepared: 21 March 2001