PART 5 Offences under Domestic Law

Introduction

50 Meaning of “genocide”, “crime against humanity” and “war crime”
(1) In this Part “genocide” means an act of genocide as defined in article 6

PART 5 Offence under Domestic Law

England and Wales

51 Genocide, crimes against humanity and war crimes
(1) It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.
(2) This section applies to acts committed—
(a) in England or Wales, or
(b) outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.

52 Conduct ancillary to genocide, etc. committed outside jurisdiction
(1) It is an offence against the law of England and Wales for a person to engage in conduct ancillary to an act to which this section applies.
(2) This section applies to an act that if committed in England or Wales would constitute—
(a) an offence under section 51 (genocide, crime against humanity or war crime), or
(b) an offence under this section,
but which, being committed (or intended to be committed) outside England and Wales, does not constitute such an offence.
(3) The reference in subsection (1) to conduct ancillary to such an act is to conduct that would constitute an ancillary offence in relation to that act if the act were committed in England or Wales.
(4) This section applies where the conduct in question consists of or includes an act committed—
(a) in England or Wales, or
(b) outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.

53 Trial and punishment of main offences
(1) The following provisions apply in relation to—
(a) offences under section 51 (genocide, crimes against humanity and war crimes),
(b) offences under section 52 (conduct ancillary to genocide, etc. committed outside jurisdiction), and
(c) offences ancillary to an offence within paragraph (a) or (b) above.
(2) The offence is triable only on indictment.
(3) Proceedings for an offence shall not be instituted except by or with the consent of the Attorney General.
(4) If the offence is not committed in England or Wales—
(a) proceedings may be taken, and
(b) the offence may for incidental purposes be treated as having been committed,
in any place in England or Wales.
(5) A person convicted of—
(a) an offence involving murder, or
(b) an offence ancillary to an offence involving murder,
shall be dealt with as for an offence of murder or, as the case may be, the corresponding ancillary offence in relation to murder.
In this subsection “murder” means the killing of a person in such circumstances as would, if committed in England or Wales, constitute murder.
(6) In any other case a person convicted of an offence is liable to imprisonment for a term not exceeding 30 years.

PART 5 Offences under Domestic Law

England and Wales

55 Meaning of “ancillary offence”

(1) References in this Part to an ancillary offence under the law of England and Wales are to—
(a) aiding, abetting, counselling or procuring the commission of an offence,
(b) inciting a person to commit an offence,
(c) attempting or conspiring to commit an offence, or
(d) assisting an offender or concealing the commission of an offence.

(2) In subsection (1)(a) the reference to aiding, abetting, counselling or procuring is to conduct that in relation to an indictable offence would be punishable under section 8 of the Accessories and Abettors Act 1861 (c. 94).

(3) In subsection (1)(b) the reference to incitement is to conduct amounting to an offence of incitement at common law.

(4) In subsection (1)(c)—
(a) the reference to an attempt is to conduct amounting to an offence under section 1 of the Criminal Attempts Act 1981 (c. 47); and
(b) the reference to conspiracy is to conduct amounting to an offence of conspiracy under section 1 of the Criminal Law Act 1977 (c. 45).

(5) In subsection (1)(d)—
(a)the reference to assisting an offender is to conduct that in relation to a relevant offence would amount to an offence under section 4(1) of the Criminal Law Act 1967 (c. 58); and
(b)the reference to concealing an offence is to conduct that in relation to a relevant offence would amount to an offence under section 5(1) of that Act.

56 Saving for general principles of liability, etc
(1) In determining whether an offence under this Part has been committed the court shall apply the principles of the law of England and Wales.

(2) Nothing in this Part shall be read as restricting the operation of any enactment or rule of law relating to—
(a) the extra-territorial application of offences (including offences under this Part), or
(b) offences ancillary to offences under this Part (wherever committed).

PART 5 Offences under Domestic Law

Northern Ireland

58 Genocide, crimes against humanity and war crimes

(1) It is an offence against the law of Northern Ireland for a person to commit genocide, a crime against humanity or a war crime.

(2) This section applies to acts committed—
(a) in Northern Ireland, or
(b) outside the United Kingdom by a United Kingdom national or a United Kingdom resident.


59 Conduct ancillary to genocide, etc. committed outside jurisdiction

(1) It is an offence against the law of Northern Ireland for a person to engage in conduct ancillary to an act to which this section applies.

(2) This section applies to an act that if committed in Northern Ireland would constitute—
(a) an offence under section 58 (genocide, crime against humanity or war crime), or
(b) an offence under this section,
but which, being committed (or intended to be committed) outside Northern Ireland, does not constitute such an offence.

(3) The reference in subsection (1) to conduct ancillary to such an act is to conduct that would constitute an ancillary offence in relation to that act if the act were committed in Northern Ireland.

(4) This section applies where the conduct in question consists of or includes an act committed—
(a) in Northern Ireland, or
(b) outside the United Kingdom by a United Kingdom national or a United Kingdom resident.


60 Trial and punishment of main offences

(1) The following provisions apply in relation to—
(a) offences under section 58 (genocide, crimes against humanity and war crimes),
(b) offences under section 59 (conduct ancillary to genocide, etc. committed outside jurisdiction), and
(c) offences ancillary to an offence within paragraph (a) or (b) above.

(2) The offence is triable only on indictment.

(3) Proceedings for an offence shall not be instituted except by or with the consent of the Attorney General for Northern Ireland.

(4) If the offence is not committed in Northern Ireland—
(a) proceedings may be taken, and
(b) the offence may for incidental purposes be treated as having been committed,
in any place in Northern Ireland.

(5) A person convicted of—
(a) an offence involving murder, or
(b) an offence ancillary to an offence involving murder,
shall be dealt with as for an offence of murder or, as the case may be, the corresponding ancillary offence in relation to murder.
In this subsection “murder” means the killing of a person in such circumstances as would, if committed in Northern Ireland, constitute murder.

(6) In any other case a person convicted of an offence is liable to imprisonment for a term not exceeding 30 years.

PART 5 Offences under Domestic Law

Supplementary provisions

66 Mental element

(1) References in this Part to a person committing—
(a) genocide,
(b) a crime against humanity,
(c) a war crime, or
(d) any of the acts mentioned in article 70.1 (offences against the admninistration of justice in relation to the ICC),
shall be construed in accordance with this section.

(2) Unless otherwise provided by—
(a) the articles mentioned in the definition in section 50(1) of the crimes specified in subsection (1)(a) to (c) above, or any relevant Elements of Crimes (see section 50(2)),
(b) section 54(1) or 61(1) or article 70.1 (offences in relation to the ICC), or
(c) section 65 (responsibility of commanders and other superiors),
a person is regarded as committing such an act or crime only if the material elements are committed with intent and knowledge.

(3) For this purpose—
(a) a person has intent—
(i) in relation to conduct, where he means to engage in the conduct, and
(ii) in relation to a consequence, where he means to cause the consequence or is aware that it will occur in the ordinary course of events; and
(b) “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.

(4) In interpreting and applying the provisions of this section (which corresponds to article 30) the court shall take into account any relevant judgment or decision of the ICC.
Account may also be taken of any other relevant international jurisprudence.

SCHEDULES

Schedule 8 Genocide, Crimes against Humanity and War Crimes: Articles 6 to 9

Article 6 Genocide

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Part 5 Offences under domestic law

Consequential provisions

71 Extradition: Orders in Council under the 1870 Act

Repealed.

72 Extradition: exception to dual criminality rule under the 1989 Act

Repealed.

73 Extradition: offences not regarded as of political character etc

Repealed.

Article 5
Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:
(a) The crime of genocide

Article 6
Genocide
For the purpose of this Statute, "genocide" means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

This provision follows the ICC Statute.

 

Sections 50 and 51 of the ICC Act 2001 incorporates the crime of genocide into national law by reference to Article 6 of the Rome Statute (See Matthew Brubacher and Simon Olleson, Report of the United Kingdom (European Law Students Association, London 2004) 2 and Robert Cryer and Olympia Bekou, 'International Crimes and ICC Cooperation in England and Wales' (2007) 5 Journal of International Criminal Justice 441, 444). The ICC Act 2001 provides that the crime should be interpreted in accordance with the Elements of Crimes, propagated under Article 9 of the Rome Statute, along with decisions of the ICC and other international tribunals, and therefore the crimes in England and Wales will reflect the crimes in the Rome Statute. Section 58(1) makes genocide, as defined in Article 6 of the Rome Statute, a crime under Northern Irish criminal law. The offence mirrors the Rome Statute. In Scotland the ICC (Scotland) Act 2001 similarly incorporates the crimes set out in Article 6 of the Rome Statute. General principles of liability apply to determining whether the accused is guilty of these crimes. The general presumption is that all crimes must be committed with knowledge and intent, unless the contrary can be shown.