Guidelines and checklist on implementation of the ICC Statute and the APIC

Crimes Against Humanity (19)

Overview of national approaches to the implementation of substantive and procedural provisions with a 59-step implementation checklist

International Criminal Law Guidelines: Implementing the Rome Statute of the International Criminal Court
Brussels, September 2017
130 pages
ISBN: 978-82-8348-193-8.
LTD-PURL: http://www.legal-tools.org/doc/e05157/.    

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The International Criminal Law Guidelines on Implementation of the Rome Statute of the International Criminal Court provide an annotated overview of the approaches adopted by over 100 States in implementing the provisions of the ICC Statute and the Agreement on Privileges and Immunities of the ICC (APIC) at the national level. The Guidelines cover the provisions relevant to the core crimes, jurisdiction, general principles, and the international cooperation and judicial assistance regime – identified through the National Implementing Legislation Database (NILD) and the Cooperation and Judicial Assistance Database (CJAD).

Moreover, a set of 59 implementation notes has been compiled into a checklist to provide guidance for national legislators, policy-makers, criminal justice practitioners, researchers and academics, who wish to gain an understanding of the approaches that are available to States in the implementation process.

Identify the implementation challenges and select the best approach

The Guidelines introduce the political and legal obstacles that States need to overcome in order to implement the ICC Statute effectively and outline the different approaches available to States in adopting implementing legislation: a single act approach, an amendment approach, a model approach and the combination approach have all been examined.

“Reviewing the compatibility of national provisions with international standards is not an easy task. Drafting and passing implementing legislation on substantive international criminal law and procedure is a complex and often protracted process.” (p. 5)

Implement the substantive provisions of the ICC Statute

States incorporating genocide, crimes against humanity, war crimes and aggression should ensure that all legal requirements envisaged in the ICC Statute are included in their national crime definitions. States may adopt a wider or narrower approach than the provisions found in the Statute. For instance, some States have expanded the definition of genocide to include additional groups, others have added further punishable acts to the provision on crimes against humanity, and a number have afforded the same coverage for war crimes committed in an international armed conflict as those committed in an internal armed conflict.

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With regard to jurisdictional principles, States ought to review whether such principles should be extended to allow for retrospective or universal jurisdiction. Furthermore, in implementing the provisions concerning the general principles of criminal law, States should revisit issues such as the irrelevance of official capacity, non-applicability of statute of limitations and the grounds for excluding criminal responsibility.

See also: National Implementing Legislation Database (NILD)

Enable timely and effective cooperation with the ICC

The successful implementation of the ICC cooperation and judicial assistance regime is concomitant to the general obligation to cooperate fully with the Court. National legislation should put in place the national mechanisms and procedures to deal with ICC cooperation requests regarding arrest, surrender and other forms of cooperation. It should also contain provisions to deal with competing requests and/or international obligations towards other States.

See also: Cooperation and Judicial Assistance Database (CJAD)

Implement the provisions of the Agreement on Privileges and Immunities (APIC)

The APIC grants privileges and immunities – such as the capacity to contract and participate in legal proceedings and the inviolability of documents and communication – to the ICC staff, witnesses, victims, State representatives and other persons whose presence is required in the Court. As a result of the ratification, acceptance, approval or accession to the APIC, States are under an obligation to incorporate its provisions in their domestic legal systems: they are advised to ratify the APIC and implement its provisions into their national framework in a similar manner to incorporating the ICC cooperation regime.

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