Part 2 - Criminal Offences

Chapter 3 - Other Offences

70 Genocide, crimes against humanity and war crimes

(1) The International Criminal Court Act 2001 (c. 17) is amended as follows.

(2) In sections 53 and 60 (trial and punishment of main offences), after subsection (6) add—

“(7) Subsections (5) and (6) are subject to section 65B (restriction of penalties in relation to retrospective application of certain offences).”

(3) After section 65 insert—

“65A Retrospective application of certain offences

(1) Sections 51 and 58 apply to acts committed on or after 1 January 1991.

(2) But those sections do not apply to a crime against humanity, or a war crime within article 8.2(b) or (e), committed by a person before 1 September 2001 unless, at the time the act constituting that crime was committed, the act amounted in the circumstances to a criminal offence under international law.

(3) Section 52 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of England and Wales but for this section.

(4) Section 59 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of Northern Ireland but for this section.

(5) Any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence—
(a) applies to conduct in which a person engaged on or after 1 January 1991, and
(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.

(6) But sections 52 and 59, and any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence, do not apply to—
(a) conduct in which the person engaged before 1 September 2001, or
(b) conduct in which the person engaged on or after that date which was ancillary to an act or conduct which—
(i) was committed or engaged in before that date, and
(ii) would not constitute a relevant Part 5 offence, or fall within section 52(2) or 59(2), but for this section, unless, at the time the person engaged in the conduct, it amounted in the circumstances to a criminal offence under international law.

(7) Section 65, so far as it has effect in relation to relevant Part 5 offences—
(a) applies to failures to exercise control of the kind mentioned in section 65(2) or (3) which occurred on or after 1 January 1991, and
(b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section.

(8) But section 65, so far as it has effect in relation to relevant Part 5 offences, does not apply to a failure to exercise control of the kind mentioned in section 65(2) or (3) which occurred before 1 September 2001 unless, at the time the failure occurred, it amounted in the circumstances to a criminal offence under international law.

(9) In this section “relevant Part 5 offence” means an offence under section 51, 52, 58 or 59 or an offence ancillary to such an offence.

65B Modification of penalties: provision supplemental to section 65A

(1) In the case of a pre-existing E&W offence committed before 1 September 2001, in section 53(6) “30 years” is to be read as “14 years”.

(2) In the case of an offence of the kind mentioned in section 55(1)(d) which is ancillary to a pre-existing E&W offence committed before 1 September 2001, nothing in section 53(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act 1967.

(3) In the case of a pre-existing NI offence committed before 1 September 2001, in section 60(6) “30 years” is to be read as “14 years”.

(4) In the case of an offence of the kind mentioned in section 62(1)(d) which is ancillary to a pre-existing NI offence committed before 1 September 2001, nothing in section 60(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act (Northern Ireland) 1967.

(5) In this section — “pre-existing E&W offence” means—
(a) an offence under section 51 on account of an act constituting genocide, if at the time the act was
committed it also amounted to an offence under section 1 of the Genocide Act 1969;
(b) an offence under section 51 on account of an act constituting a war crime, if at the time the act was
committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);
(c) an offence of a kind mentioned in section 55(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above;
“pre-existing NI offence” means—
(a) an offence under section 58 on account of an act constituting genocide, if at the time the act was
committed it also amounted to an offence under section 1 of the Genocide Act 1969;
(b) an offence under section 58 on account of an act constituting a war crime, if at the time the act was
committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions);
(c) an offence of a kind mentioned in section 62(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above.”

Article 22
Nullum crimen sine lege
1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.