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International Criminal Court Act 2001

Part 3: Other Forms of Assistance

54.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.

55.This Act, 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.

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

Section 27: Provision of assistance

57.The reference in subsection (1) to investigations initiated and not concluded 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.

Section 28: Questioning of person being investigated or prosecuted

58.This section relates to Article 93.1(c) whereby the ICC can ask the domestic authorities to question a person whom 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.

Section 29: Taking or production of evidence

59.This section 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.

Section 30: Taking or production of evidence: further provisions

60.Subsection (2) provides that a court nominated under section 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.

Section 31: Service of process

61.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 section makes provision for a summons or other document to be personally served on an individual in England and Wales or Northern Ireland.

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

62.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.

63.This section 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.

Section 33: Powers of entry, search and seizure

64.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 section 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.

Section 34: Taking of fingerprints or non-intimate sample

65.The purpose of this section 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 140-142 below.)

Section 35: Orders for exhumation

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

Section 36: Provision of records and other documents

67.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 sections 29 and 33. This section 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.

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

68.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.

69.Sections 37 and 38 together make provision for such requests to be carried out. Section 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. Section 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 143-152 below.)

Section 39: Matters prejudicial to national security

70.This section 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 section 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.

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