Memorandum submitted by Dr Roger O'Keefe
EXECUTIVE SUMMARY
1. When enacted into law, the Cultural Property
(Armed Conflicts) Bill as currently drafted will—with two
exceptions—admirably serve to acquit, to the extent that
it aims to, the United Kingdom's proposed treaty obligations under
the 1954 Hague Convention and its two Protocols. The Government
may wish to reconsider the drafting of clauses 4 and 5, which
constitute the exceptions, and to make several other minor amendments.
ABOUT THE
SUBMITTER
2. Dr Roger O'Keefe, BA, LLB (Sydney), LLM,
PhD (Cantab), is a Lecturer in Law and the Deputy Director of
the Lauterpacht Centre for International Law at the University
of Cambridge, as well as a Fellow of Magdalene College. He lectures
in international law, including international criminal law. In
2001 he was commissioned by UNESCO to write an expert report on
national implementation of the penal provisions of the Second
Protocol to the 1954 Hague Convention. His book The Protection
of Cultural Property in Armed Conflict was published by Cambridge
University Press in December 2006. He has also written several
journal articles and chapters in edited volumes on the subject,
and has lectured on the topic at the Hague Academy of International
Law.
DETAILED COMMENTS
ON THE
BILL
General
3. The draft Cultural Property (Armed Conflicts)
Bill is carefully considered and, by and large, extremely well
drafted. The seriousness and professionalism with which the task
has evidently been approached is impressive. There is no doubt
that, subject to the reservations expressed below in relation
to clauses 4 and 5, the Bill would, on enactment, achieve its
stated aim of giving effect to the relevant provisions of the
1954 Hague Convention and its two Protocols.
Clause 4
The main issue
4. The first reservation relates to the
drafting of clause 4. This clause is largely modelled on analogous
provisions in the International Criminal Court Act 2001 (c.17)
and the International Criminal Court (Scotland) Act 2001 (asp
13) respectively. But unlike section 55 (applicable to England
& Wales) and section 62 (applicable to Northern Ireland) of
the International Criminal Court Act, clause 4 of the Cultural
Property (Armed Conflicts) Bill, which deals with offences ancillary
to the offence of serious breach of the Second Protocol laid down
in clause 3, makes no mention of aiding, abetting, counselling
or procuring the commission of an offence. The drafting intention
behind this divergence from the International Criminal Court Act
is not revealed in the Explanatory Memorandum and is not at all
clear.
5. Mention of aiding, abetting, counselling
or procuring the commission of an offence is, however, found in
subsection (1) of clause 5 of the Bill, which deals with the responsibility
of commanders and other superiors for an offence under clause
3 or an offence ancillary to such an offence. Clause 5(1), a technical
deeming provision analogous to section 65(4) of the International
Criminal Court Act, states: "A person described in this section
as responsible for an offence is to be treated as aiding, abetting,
counselling or procuring the commission of the offence".
6. Note that Scots law does not use the
term "aiding, abetting, counselling or procuring the commission
of an offence", but rather "being art and part in the
commission an offence", which is included as an ancillary
offence in clause 4(4)(a) of the Bill.
7. By virtue of the drafting of clause 4
of the Bill, the United Kingdom would not satisfy its obligation
under article 15(2) of the Second Protocol to the 1954 Hague Convention
to "comply with general principles of law and international
law, including the rules extending individual criminal responsibility
to persons other than those who directly commit the act"
when enacting into domestic criminal law the offences provided
for in article 15(1) of that Protocol. Paragraph 24 of the Explanatory
Memorandum states that the Statute of the International Criminal
Court "was accepted during the negotiations on the Second
Protocol as an authoritative restatement of the general principles
of international law in relation to criminal liability";
and the ICC Statute includes aiding, abetting or otherwise assisting
in the commission of a crime, on the one hand, and ordering, soliciting
or inducing the commission of a crime (the international equivalent
of counselling or procuring a crime), on the other, as forms of
criminal liability (or criminal "responsibility", in
the language of international law). The mention of these forms
of criminal liability in the deeming provision on command and
other superior responsibility found in clause 5(1) does not make
up for their omission from clause 4, since aiding, abetting or
otherwise assisting in the commission of a crime and ordering,
soliciting or inducing the commission of a crime are forms of
international criminal responsibility wholly distinct from command
and other superior responsibility, the first two being found in
article 25(3)(a) and (b) respectively of the ICC Statute, the
last in article 28. The difference is also born out in the case-law
of the International Criminal Tribunal for the former Yugoslavia
and the International Criminal Tribunal for Rwanda. As currently
drafted, therefore, clause 4 of the Bill does not fulfil the obligation
imposed by section 15(2) of the Second Protocol to make domestic
provision for the concepts of aiding, abetting or otherwise assisting
in the commission of a crime and ordering, soliciting or inducing
the commission of a crime, as known to international law. As independent
legal concepts, these two forms of criminal responsibility are
nowhere to be found in the provisions of the Bill relating to
England & Wales and Northern Ireland—although they are,
by way of contrast, reflected in clause 4(4)(a), which applies
to Scotland. Moreover, even to the purely nominal extent that
aiding, abetting or otherwise assisting in the commission of a
crime and ordering, soliciting or inducing the commission of a
crime, as known to international law, are included in clause 5,
they apply in this context only to military commanders and other
superiors, and not to all those capable of committing an offence
under article 15 of the Second Protocol.
8. Just as significantly, the omission from
clause 4 of aiding, abetting, counselling or procuring the commission
of an offence has a knock-on effect for clause 5. As mentioned
above, clause 5(1) of the Bill is analogous to section 65(4) of
the International Criminal Court Act. The purpose of section 65(4)
of the International Criminal Court Act is to criminalise command
and other superior responsibility by deeming them to be forms
of aiding, abetting, counselling or procuring the commission of
an offence, which in turn constitutes an ancillary offence under
section 52(1) (England & Wales) and section 59(1) (Northern
Ireland) of the Act. In the process, section 65(4) clarifies,
via subsections (2) to (4) of sections 52 and 59 respectively,
the ambit of command and other superior responsibility for crimes
under the Act—that is, in what circumstances such conduct
is criminal if committed outside the United Kingdom; and provides,
via sections 53 and 60 of the Act, for the trial and punishment
of such conduct. Under the Bill, however, while command and other
superior responsibility are deemed in clause 5(1) to be forms
of aiding, abetting, counselling or procuring the commission of
an offence, the latter is not itself an ancillary offence within
the meaning of clause 4. A possible consequence of this is that
command and other superior responsibility are not in fact criminal
under the Bill as it now stands, although it is more likely that
it is not strictly necessary for the Bill specifically to provide,
as sections 52(1) and 59(1) of the International Criminal Court
Act do, that aiding, abetting, counselling or procuring the commission
of an offence under clause 3 is itself an offence. But the point
is academic, since what is clear—and this is far from academic—is
that unless aiding, abetting, counselling or procuring the commission
of an offence is specifically cited in clause 4 as an ancillary
offence, the Bill makes no provision for the ambit of command
and other superior responsibility for serious breaches of the
Protocol (since clause 4, which deals with this issue, applies
only to the ancillary offences mentioned therein), and makes no
provision for penalties in respect of command and other superior
responsibility for serious breaches of the Protocol (since clause
7(2)(b) refers to ancillary offences, the meaning of which derives
from clause 4). The upshot is that the Bill as currently drafted
may not fulfil the United Kingdom's obligation under article 15(2)
of the Second Protocol to make domestic provision, as clause 5
is intended to do, for command and other superior responsibility;
and certainly does not fulfil either the obligation contained
in that section, to the extent that it is applicable to command
and other superior responsibility for serious violations of the
Protocol, to make such violations punishable by appropriate penalties
or the jurisdictional obligations contained in article 16, to
the extent that they apply to command and other superior responsibility.
Note also that, for the same reasons mutatis mutandis as
those just outlined, the omission of aiding, abetting, counselling
or procuring the commission of an offence means that the Bill
currently makes no provision in clause 8 for the Attorney-General's
consent to prosecutions in respect of command and other superior
responsibility for serious breaches of the Protocol.
A secondary issue
9. For the purposes of the law of England
& Wales and of Northern Ireland, inciting an offence under
clause 3 does not constitute an ancillary offence. This is in
contrast to the situation under Scots law, where inciting a person
to commit an offence under clause 3 is characterised as an ancillary
offence in clause 4(4)(b). This would not amount to a breach of
article 15(2) of the Second Protocol, since international law
recognises incitement as a form of criminal responsibility only
in relation to genocide. But there is no good reason why incitement
to commit an offence under clause 3 should be criminal if tried
in Scotland but not if tried in England and Wales or Northern
Ireland.
Clause 5
10. As mentioned, Scots law does not recognise
criminal liability for aiding, abetting, counselling or procuring
an offence, as specifically referred to in clause 5(1) of the
Bill. It uses the equivalent but not identical concept of "being
art and part" in the commission of an offence. This is not
reflected in section 1 of clause 5 of the Bill, which deems command
and other superior responsibility to be forms only of aiding,
abetting, counselling or procuring the commission of an offence.
(In contrast, section 5(4) of the International Criminal Court
(Scotland) Act states: "A person responsible under this section
for an offence shall be regarded as being art and part in the
commission of the offence".) The result of the omission is
that, as the Bill now stands, command and superior responsibility
would not be criminal under Scots law.
11. Subsection 6 of clause 5 directs the
court to take account of any relevant judgment or decision of
the International Criminal Court. The analogous provisions of
the International Criminal Court Act and of the International
Criminal Court (Scotland) Act, namely sections 65(5) and 9(4)(b)
respectively, add that account may also be taken of any other
relevant international jurisprudence. It is unclear why this additional
sentence has been omitted from clause 5(6). It is a useful sentence,
since the International Criminal Tribunal for the former Yugoslavia
and the International Criminal Tribunal for Rwanda, the two major
sources of this "other relevant international jurisprudence",
have generated a body of case-law on command and other superior
responsibility for war crimes which would doubtless be of use
to the criminal courts of the various jurisdictions of the United
Kingdom.
Clause 17
12. Clause 17, subsections (1) and (4),
on the definition of "unlawfully exported cultural property"
for the purposes of Part 4 of the Bill, speak of territory "occupied
by a party to the First or Second Protocol". Part 4 of the
Bill is referable to the United Kingdom's obligations under Section
I of the First Protocol to the 1954 Hague Convention and to article
9(1)(a) of the Second Protocol. In accordance with paragraph 9
of First Protocol,[1]
however, a state may, on becoming party to the First Protocol,
declare that it will not be bound by Section I of the Protocol.
In practice, no state party to the Protocol has done so. But the
theoretical possibility remains. As a consequence, not every state
party to the First Protocol is necessarily bound by the obligations
laid down in Section I, with the upshot that not every export
of cultural property from territory occupied by a state party
to the Protocol will be internationally unlawful.
Clause 21
13. On a point of pedantry, it should be
noted that subsection (1) of clause 21 contains a grocer's apostrophe
("Commissioner's", instead of "Commissioners").
See also Explanatory Memorandum, paragraph 8.
RECOMMENDATIONS
13. In the above light, the Government may
wish to take the following action:
— To amend clause 4(2) of the Bill
to read (emphasis added):
In the application of this Part to England and
Wales, references to an offence that is ancillary to an offence
under section 3 are to—
(a) aiding, abetting, counselling or procuring
the commission of that offence,
(b) inciting a person to commit that offence,
(c) attempting or conspiring to commit that offence,
or
(d) an offence
under section 4(1) or 5(1) of the Criminal Law Act 1967 (c 58)
(assisting an offender or concealing the commission of an offence)
where the relevant offence mentioned there is an offence under
section 3 of this Act.
— To amend clause 4(3) of the Bill
to read (emphasis added):
In the application of this Part to Northern Ireland,
references to an offence that is ancillary to an offence under
section 3 are to—
(a) aiding, abetting, counselling or procuring
the commission of that offence,
(b) inciting a person to commit that offence,
(c) attempting or conspiring to commit that offence,
or
(d) an offence
under section 4(1) or 5(1) of the Criminal Law Act (Northern Ireland)
1967 (c 18 (NI)) (assisting an offender or concealing the commission
of an offence) where the relevant offence mentioned there is an
offence under section 3 of this Act.
— To amend clause 5(1) of the Bill
to read (emphasis added):
A person described in this section as responsible
for an offence is to be treated as aiding, abetting, counselling
or procuring the commission of the offence or (as the case
may be) as being art and part in the commission of the offence.
— To amend clause 5(6) of the Bill
to read (emphasis added):
In interpreting and applying the provisions of
this section (which corresponds to article 28 of the Statute of
the International Criminal Court done at Rome on 17th July 1998)
a court must take account of any relevant judgment or decision
of the International Criminal Court.
Account may also be taken of any other relevant
international jurisprudence.
— To amend clause 17, subsections (1)
and (4) to read (emphasis added):
For the purposes of this part property is "unlawfully
exported cultural property" if it has, at any time, been
unlawfully exported from territory that is occupied by a Party
to the First Protocol which is bound by Section I of that Protocol
or by a party to the Second Protocol.
— To correct the punctuation in clause
21(1) of the Bill and paragraph 8 of the Explanatory Memorandum.
June 2008
1 Although the provisions of binding international
agreements are usually called "articles", the First
Protocol refers to its provisions as "paragraphs". Back
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