¹ A/CONF. 183/9* [hereafter ‘ICC Statute’].

² Scotland has its own implementing legislation, the International Criminal Court (Scotland) Act 2001, 2001 ASP 13. However the procedures in the Act discussed in this piece relating to arrest and surrender apply, mutatis mutandis, to Scotland.

³ 2001 c 17 [hereafter ‘the Act’]. Section references otherwise unattributed are to this act.

⁴ Pursuant to s 82, Secretary of State Jack Straw brought the Act into force with the International Criminal Court Act 2001 (Commencement) Order 2001, 2001 SI 2161, as amended by 2001 SI 2304.

⁵ HC Hansard, vol. 316, col. 807 (20 July 1998) (Mr Cook).

⁶ That is, genocide, crimes against humanity, and war crimes. These crimes are referred to collectively hereafter as ‘ICC crimes’ Aggression is not included, as pursuant to Art 5(2) of that Statute, the ICC is not yet entitled to assert jurisdiction over aggression.

⁷ e.g. ICC Statute, Art 99

⁸ Ibid, Art 93(1).

⁹ Ibid, Art 93(1)(1).

¹⁰ Ibid, Art 86.

¹¹ Ibid, Art 88.

¹² Ibid, Art 89 and 92 respectively.

¹³ 1984 c 60.

¹⁴ 1988 c 13.

¹⁵ S 34, Sch 4.

¹⁶ See ss 7(2)(5) of Sch 4.

¹⁷ This is acceptable, see ICC Statute, Art 72.

¹⁸ S 28(1).

¹⁹ S 29(2).

²⁰ ICC Statute Art 55(2)(b).

²¹ Ibid, Art 5(2).

²² Prosecutor v Delalic, Delic, Mucic & Landzo, IT–96–21.

²³ Ibid, Decision on Zdravko Mucic's Motion for the Exclusion of Evidence, IT–96–1–T, 2 Sept 1997 (PR D5082–D5105).

²⁴ A good faith investigation by the UK would prevent the ICC from requiring the UK to defer a prosecution to it (see ICC Statute, Art 17). But the UK could decide to waive its complementarity rights.

²⁵ Art 102 of the ICC Statute differentiates extradition between States and surrender to the ICC.

²⁶ Issued by the ICC under powers grated to it in Art 58.

²⁷ S 2(3).

²⁸ S 14.

²⁹ 1965 c 45. On which see I Stanbrook and C Stanbrook, Extradition Law and Practice, 2nd edn (Oxford: Oxford University Press, 2000), 257–60. The analogy was made by Lord Williams of Mostyn, HL Hansard, vol. 621, col 1287 (8 Feb 2001).

³⁰ Ibid, s5(l).

³¹ Ibid, ss 5(3)(a), 15. Or (in the case of a person already convicted by the ICC, to the State in which he is to serve his sentence (Ibid, s 5(3)(b)). The procedure for reviewing decisions of the court to grant, or refuse, delivery orders is given by ss 8 and 9 (for refusals) and ss 12 and 13 (for review of decisions to make an order).

³² Ibid, s 5(2)(a)(b).

³³ Ibid, s 5(5).

³⁴ See Forde, M, The Law of Extradition in the United Kingdom ((Dublin: Round Hall, 1995), 67–73Google Scholar.

³⁵ ICC Statute, Art 58.

³⁶ European Convention on Extradition 1957, ETS No 24.

³⁷ This was implemented in 1990, 1990 SI 1507, reg 3.

³⁸ The objections identified by Fox, Lady (‘The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal’ (1997) 46 ICLQ 434CrossRefGoogle Scholar) to surrender to the ICTY are not applicable here.

³⁹ ICC Statute, Art 92(1 )(c).

⁴⁰ SS 72–3 remove these hurdles from extradition, the reasons for removal apply a fortiori to surrender to the ICC.

⁴¹ Act, s 5(6). The procedure is required by Art 59 of the ICC Statute.

⁴² Ibid, s 5(8).

⁴³ HL Hansard, vol. 621, col. 1300. The ICC has the power, under Art 85 of the ICC Statute, to order compensation. As the Joint Appeals chamber confirmed in Prosecutor v Barayagwiza, Decision, ICTR–97–19, 3 Nov 1999, paras 73–7, a court has inherent jurisdiction to refuse to proceed if to do so would amount to an abuse of process. S 4(9) requires to inform the ICC of any declarator on violations of a suspects rights made by the court issuing the delivery order.

⁴⁴ R v Bow Street Stipendiary Magistrate, exparte Pinochet Ugarte [No 3] [1999] 2 WLR 827.

⁴⁵ Arrest Warrant of 11 Apr 2000, ICJ General List 121, 14 Feb 2002, available at <http://www.icj-cij.org>.

⁴⁶ Ibid, para 61.

⁴⁷ Ibid.

⁴⁸ ICC Statute, Art 27.

⁴⁹ Pinochet above n 44, 844–5, Yerodia, above n 45, paras 56–7. Equally, the Cour de Cassation, in Abetz (28 July 1950), noted (1952) 46 AJIL 161 declared that international law removed diplomatic immunity from those accused of war crimes.

⁵⁰ ICC Statute, Art 27.

⁵¹ HL Hansard, vol.622, col. 11 (12 Feb 2001). Sarooshi, D, ‘The Statute of the International Criminal Court’ (1999) 48 ICLQ 386, 391–2CrossRefGoogle Scholar, considers there to be no obligation, even on States party, to waive immunity, At the least, Art 93(1)(1) might be considered sufficient authority for the ICC to make an order for waiver to States party to the ICC Statute.

⁵² ‘[A] non-State party to the ICC Statute has not accepted that provision [Art 27] and the immunity of their diplomats remains intact unless there is an express waiver’, per Lord Avebury, Ibid, col. 12. Where the ICC has jurisdiction by virtue of a Security Council referral, s 23(3) allows the Secretary of State to make Orders in Council applying the procedure normally applicable to State parties to all States. This may be done as the Security Council Resolution is likely, to provide for a regime that does not take note of immunities.

⁵³ ‘[T]he Court 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 Court can first obtain the co-operation of that third State for the waiver of the immunity.’

⁵⁴ See Prost, K and Schlunck, A, ‘Article 98’, in Triffterer, O (ed), Commentary on the Rome Statute for the International Criminal Court (Baden Baden: Nomos, 1999), 1131, 1131.Google Scholar

⁵⁵ Baroness Scotland, accepted ‘The situation we are providing for will be rare. Precise details are difficult to predict’, HL Hansard, vol 623, col 411 (8 Mar 2001).

⁵⁶ This provision caused considerable disagreement in the House of Lords, Ibid, cols 410–13.

⁵⁷ Baroness Scotland, Ibid, col 411.

⁵⁸ S 23 Extradition Act 1989 c 33, (prior to amendment). S 73 of the Act amends s 23 of the Extradition Act to include crimes against humanity and war crimes.

⁵⁹ See Gilbert, G, Transnational Fugitive Offenders in International Law (The Hague: Nijhoff, 1998), 392–3.Google Scholar

⁶⁰ Ibid, 395.

⁶¹ Although it is possible that the jurisdiction granted over residents may also be based on a limited universal jurisdiction claim, see later.

⁶² For example, there are similar provisions in the Extradition Act 1989 (ss 2(l)(b)(ii), 2(3)(a)) allowing for extradition to countries prosecuting on the basis of nationality jurisdiction, despite the UK, for the most part, not doing so. This is easily explained by the fact that nationality jurisdiction is established in international law. See Stanbrook and Stanbrook, op cit, 44.

⁶³ In short, genocide and grave breaches of the Geneva Conventions and Additional Protocol I were crimes under UK law (pursuant to the Genocide Act 1969, c 12, and the Geneva Conventions Act 1957 c 53 (as amended by the Geneva Conventions (Amendment Act 1995 c 27) respectively). See Turns, D, ‘Prosecuting Violations of International Humanitarian Law: The Legal Position in the United Kingdom’ (1999) 4 Journal of Armed Conflict Law, 1–39CrossRefGoogle Scholar. The Act repeals the Genocide Act, s 83, Sch 10.

⁶⁴ Above n 44, only Lord Millett was willing to accept customary law was capable of creating offences in domestic law, Ibid, 912.

⁶⁵ Ancillary offences are criminalised by s 52. These are aiding, abetting, counselling or procuring, inciting, attempt, or assisting an offender or concealing the commission of an offence, s55(l).

⁶⁶ Although the court is to take into account judgements and decisions of the ICC on such offences (s 54(2)).

⁶⁷ Lord Mostyn noted in during the passing of the ICC Bill that Art 8(2)(b)(iv) was a weaker version of the corresponding offence in Protocol I. HL Hansard, vol 623 col 1303 (20 Mar 2001).

⁶⁸ See D Frank, ‘Article 8(2)(b)(iv)–Excessive Incidental Death, Injury, or Damage’ in Lee, RS et al. (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (New York: Transnational, 2001) 147, 149–51.Google Scholar

⁶⁹ See Cassese, A, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 EJIL 144, 148.CrossRefGoogle Scholar

⁷⁰ S 66.

⁷¹ On which see Bantekas, I, ‘The Contemporary Law of Command Responsibility’ (1999) 93 AJIL 573.CrossRefGoogle Scholar

⁷² For civilian superiors, more is required, see s 65(3)(a).

⁷³ ICC Statute, Art 31(d).

⁷⁴ R v Howe [1987] A.C. 417.

⁷⁵ ICC Statute Art 31(c).

⁷⁶ Cassese, loc cit, 154–5.

⁷⁷ The arguments against such action are, in essence, those against judicial creativity in offence making. As Smith, ATH notes, ‘Judicial Law Making in the Criminal Law’ (1984) 100 LQR 46, 63–7Google Scholar, these do not apply to the formation of novel defences.

⁷⁸ [1995] 1 All ER 334, 344.

⁷⁹ [1994] 2 All ER 924, 928.

⁸⁰ Smith, JC, Smith and Hogan, Criminal Law, 9th edn (London: Butterworths, 1999) 263.Google Scholar

⁸¹ Brownlie, I, Principles of Public International Law, 5th edn, (Oxford: Clarendon Press, 1998), 42Google Scholar. Comments in Abbott v R [1976] 3 WLR 462, 469, are both obiter and in the Privy Council.

⁸² Above n 74, p 427. See Rowe, P, ‘Murder and the Law of War’ (1991) NILQ 216, 227.Google Scholar

⁸³ I am grateful to Professor Andrew Simester for this point. It should be noted that Art 33 only offers the defence of superior orders to those accused of war crimes, not offences that may be committed in peacetime.

⁸⁴ CvDPP [1996] AC 1, 28.

⁸⁵ Ibid.

⁸⁶ Simester, AP and Sullivan, GR, Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2000, 650.Google Scholar

⁸⁷ Smith, ATH, ‘Reshaping the Criminal Law in the House of Lords’ [1995] 54 CLJ 488, 490.CrossRefGoogle Scholar

⁸⁸ See Gaeta, P, ‘The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law’ (1999) 10 EJIL 172CrossRefGoogle Scholarcontra McCoubrey, H, ‘From Nuremberg to Rome: Restoring the Defence of Superior Orders’, (2001) 50 ICLQ 386.CrossRefGoogle Scholar

⁸⁹ Art 33 limits its operation to those under an obligation to obey the particular order.

⁹⁰ On which see Greenwood, CJ, ‘The Twilight of the Law of Belligerent Reprisals’ (1989) 20 Netherlands YBIL 35.Google Scholar

⁹¹ eg, see Geneva Convention I, Art 46.

⁹² Hampson, F, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Convention of 1949’ (1988) 37 ICLQ 818, 832–5CrossRefGoogle Scholar. Although see Prosecutor v Kupresic et al Judgment, IT–95–16–T, 14 Jan 2000, paras 510–36. The ICTY appears to have rather over-read the state practice and opinio juris in this case.

⁹³ Repr in Roberts, A and Guelff, R, Documents on the Laws of War, 3rd edn (Oxford: Oxford University Press, 2000), 511.Google Scholar

⁹⁴ ICC Statute, Art 8(2)(b) chapeau.

⁹⁵ Text at <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partychapterXVIII/treatylO.asp>.

⁹⁶ Defined in s 67.

⁹⁷ Jennings, RY and Watts, A (eds), Oppenheim's International Law Vol I: Peace, 9th edn (London: Longman, 1992), 469.Google Scholar

⁹⁸ S 68(1).

⁹⁹ For such an interpretation of the similar jurisdictional claim in the 1991 War Crimes Act, see Meron, T, ‘International Criminalisation of Internal Atrocities’ (1995) 89 AJIL 554, 573.CrossRefGoogle Scholar

¹⁰⁰ ICC Act, ss 53(3), 54(5) respectively.

¹⁰¹ ICC Statute, Art 77(1 )(b).

¹⁰² Baroness Scotland, HL Hansard, vol 623, cols 418–19.