The United Kingdom
Ben Brandon
Section: The ICC Statute and Commonwealth States
Permanent Link:
http://vlex.com/vid/the-united-kingdom-43097011
Id. vLex: VLEX-43097011
1 A Short History of Domestic Prosecutions of International Crimes Prior to Implementing Legislation 1.1 Introduction 1.2 Domestic implementation and international crimes in the UK 1.2.1 Moscow Declaration 1943 to the War Crimes Act 1991 1.2.2 The War Crimes Act 1991 1.2.3 Regina v. Antony Sawoniuk 2 Implementing Legislation 2.1 Title 2.2 When in force 2.3 Government departments 2.4 Amendments to existing domestic legislation 3 Co-operation with the ICC 3.1 Arrest and surrender 3.1.1 The procedure involved in the arrest process 3.1.2 The procedure involved in the surrender process 3.1.3 Extradition and international crimes 3.2 Other forms of assistance to the Court 3.2.1 Questioning of a person under investigation or subject to prosecution 3.2.2 Taking or production of evidence 3.2.3 Service of process 3.2.4 Transfer of prisoner to give evidence or assist in investigation 3.2.5 Entry, search and seizure 3.2.6 Taking of fingerprints or non-intimate samples 3.2.7 Orders for exhumation 3.2.8 Provision of records and documents 3.2.9 Freezing and forfeiture 3.3 Obligations outside the context of other forms of co-operation 3.3.1 Sittings of the ICC 3.3.2 Legal capacity, privileges and immunities 3.3.3 Extension of administration of justice offences 3.3.4 Measures for the enforcement of sentences 4 Incorporating the Crimes 5 Jurisdiction of Domestic Courts and Principles of Liability 6 Rights of the Accused 7 Available Defences 8 Immunity and International Crimes 9 Trial Procedure and Punishment in Domestic Courts 10 Article 98 Agreements
The United Kingdom
1 A Short History of Domestic Prosecutions of International Crimes Prior to Implementing Legislation 1.1 Introduction On 1 April 1999, 79-year-old Antony Sawoniuk was convicted at the Old Bailey in London of murdering two Jews in September 1942 in Domachevo, Belorussia, a town under German occupation, in "violation of the laws and customs of war". He received a sentence of life imprisonment. Despite the leading role played by Great Britain at the International Military Tribunal (IMT) in Nuremberg, and in the prosecution of Nazi war criminals in occupied Germany between 1945 and 1950 in its own Military Courts and under Control Council Order Number 10, Sawoniuk was the first person to be tried in England for war crimes committed during World War II. He will probably be the last. There are a host of legal, historical and political reasons for the absence of substantive prosecutions for international crimes in the United Kingdom for 50 years - but it really comes to this: Until the late 1980s it was not thought that any war criminals lived in the UK. The few thousand German prisoners of war in the UK at the end of the War were rapidly repatriated. It was confidently assumed that the 'displaced persons' and other migrants from the Eastern Front (where many of the worst atrocities of the War occurred) had been adequately screened before their arrival in the UK to help with the post-War reconstruction effort, and any potential war criminals identified and arrested. Three factors influenced the UK Government to re-examine the question of war crimes prosecutions in the late 1980s. Firstly, the thawing in relations between the former Soviet Union and the West led to greater information sharing between NGOs, police and foreign ministries about suspected war criminals who had escaped justice after 1945 - a process that had been almost completely absent in the immediate aftermath of the War. Secondly, the relentless investigations of pressure groups such as the Simon Wiesenthal Center in Los Angeles disclosed the presence of suspected war criminals in the UK population. Finally, although not explicitly referred to in contemporary debates, the rise of ethnic violence and gross human rights violations in the former Yugoslavia from 1991 onwards caused many law-makers in Europe to look again at their own record of failure in prosecuting war criminals after the terrible conflict of 1939-1945. 1.2 Domestic implementation and international crimes in the UK The UK Government, and in particular the Foreign Secretary, can enter into treaty relations that confer rights and create binding obligations on the executive, without the prior consent of Parliament. However, such rights and obligations have no effect in domestic law "unless domestic law is in force to give effect to them".1 Parliament can incorporate such rights and obligations into domestic law through legislation. This constitutional arrangement is known as 'dualism'. Under the dualist approach treaty provisions that have been incorporated into domestic law "have only the status of domestic law"2 and can be amended or repealed by subsequent legislation, regardless of the impact on the UK's international obligations to other States Parties to the relevant treaty. Treaties are incorporated into UK law in one of three ways: (1) where the whole or part a treaty is annexed to the relevant Act as a Schedule and expressed "to have the force of law of the United Kingdom";3 (2) where Parliament confers a power on the executive to conclude future treaties of a particular type; and (3) where an Act of Parliament authorises the Crown to create secondary or delegated legislation in the form of Orders in Council making the treaties part of domestic law.4 There is nothing in English constitutional law that per se prevents English courts from recognising customary international law norms as part of the English common law. At the same time, whether or not a rule of customary international law forms part of English law is governed by the principle of certainty. In Jones & Others v. Gloucestershire Crown Prosecution Service, 5 the Court of Appeal was called upon to...
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