International Criminal Court Act 2006

PART 1 Preliminary and General

1. Short title.

1.— This Act may be cited as the International Criminal Court Act 2006.

2. Interpretation (general).

2.— (1) In this Act, unless the context otherwise requires—

“act”, except where the context otherwise requires, includes omission, and references to conduct are to be construed accordingly;

“Act of 1994” means the Criminal Justice Act 1994;

“ancillary offence” shall be construed in accordance with section8(1);

“another state” means a state other than the State;

“Article” means an Article of the Statute;

“document” includes—

(a) a map, plan, graph, drawing, photograph, photographic negative, record, book, periodical or pamphlet, and

(b) where appropriate, any tape, computer disk or other thing on which data capable of conversion into any permanent legible form is stored;

“Elements of Crimes” means Elements of Crimes (including any amendments thereto) adopted under Article 9;

“Extradition Acts” means the Extradition Acts 1965 to 2001;

“functions” includes powers and duties, and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the performance of the duties;

“ICC offence” has the meaning given to it by section9(1); “ Minister ” means the Minister for Justice, Equality and Law Reform;

“Pre-Trial Chamber” means the Pre-Trial Chamber of the International Criminal Court;

“prison” means a place of custody administered by or on behalf of the Minister and includes—

(a) F1[…]

(b) a place provided under section 2 of the Prisons Act 1970,

(c) a place specified under section 3 of the Prisons Act 1972, and

(d) a remand centre designated under section 88 of the Children Act 2001;

“property” includes—

(a) money and all other property, real or personal, movable or immovable,

(b) choses in action and any other intangible or incorporeal property, and

(c) proceeds of the disposal of property;

“Prosecutor” means the Prosecutor of the International Criminal Court;

“remand institution” means an institution (other than a prison) within the meaning of the Criminal Justice Act 1960;

“Rules of Procedure and Evidence” means the Rules of Procedure and Evidence (including any amendments thereto) adopted under Article 51;

“Statute” means the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998;

“surrender order” means an order of the High Court under section25 for the surrender of a person.

(2) Nothing in this Act (except in so far as may be required by section18) prevents the surrender of a person in accordance with the Extradition Acts or the European Arrest Warrant Act 2003.

(3) In this Act, unless the context otherwise requires—

(a) a reference to a section or Part is to a section or Part of this Act,

(b) a reference to a subsection, paragraph or subparagraph is to a subsection, paragraph or subparagraph of the provision in which the reference occurs,

(c) a reference to a Schedule is to a Schedule to this Act, and

(d) a reference to any enactment is a reference to that enactment as amended or adapted by or under any subsequent enactment.

3. Interpretation by courts of Act and Statute.

3.— (1) In interpreting the Act and Statute a court, where necessary, may—

(a) take account of the Rules of Procedure and Evidence, the Elements of Crimes and any relevant judgment or decision of the International Criminal Court,

(b) take account of any other relevant judgment, and

(c) consider the travaux préparatoires relating to the Statute and the published views of commentators on its text and give them such weight as may appear to the court to be appropriate in the circumstances.

(2) For the purposes of its application in relation to the State references in the Statute to a State Party, requested state or custodial state shall be construed, where the context so permits—

(a) as references to the State, or

(b) where the provisions in which the references occur require, or may require, the performance on behalf of the State of executive functions, as references to the Minister.

(3) Judicial notice shall be taken of the Statute.

(4) The text of the Statute in the English language is set out in Schedule 1 for convenience of reference.

(5) In this section “court” means a court in the State and includes a court-martial, whether held within or outside the State.

4. Requests by International Criminal Court.

4.— (1) In relation to any request by the International Criminal Court for the arrest and surrender, or the provisional arrest, of a person or for assistance under Article 93 (other forms of co-operation) the Minister may presume, unless he or she has any information to the contrary, that the request—

(a) has been duly made and transmitted in accordance with the relevant provisions of the Statute, and

(b) is being made in connection with the investigation or prosecution of offences within the jurisdiction of the Court.

(2) (a) Where a request by the Court involves the disclosure of information and such a disclosure would in the Minister's opinion be prejudicial to the interests of the security of the State, he or she shall—

(i) in accordance with Article 93.5, consider whether the information can be provided subject to specified conditions or whether the assistance concerned can be provided at a later date or in an alternative manner, and

(ii) if of opinion that the information cannot be so provided, act in conjunction with the Prosecutor, the defendant's legal advisers or the Pre-Trial Chamber or Trial Chamber of the Court to seek to resolve the issue in accordance with paragraph 5 of Article 72.

(b) Where the Minister becomes aware that such information is, or is likely to be, disclosed in an investigation or proceedings instituted by the Court, he or she shall, in accordance with paragraph 4 of that Article, intervene in order to obtain a resolution of the issue.

(c) If—

(i) the issue remains unresolved, and

(ii) the Minister is of opinion that there are no means by which, or conditions under which, the information could be disclosed without prejudicing the interests of the security of the State,

the Minister shall—

(I) notify the Prosecutor or the Court of that opinion and of the specific reasons for it unless to do so would itself necessarily result in prejudicing those interests, and

(II) participate in any consultations requested by the Court under Article 72.7(a)(i) in relation to the issue.

(d) For the purposes of this subsection Article 72 and paragraphs 4 and 5 of Article 93 shall have effect with any necessary modifications.

(e) In any proceedings a document purporting to be signed by the Minister and to certify that in his or her opinion—

(i) disclosure of information in compliance with a request from the Court, or

(ii) as the case may be, any further such disclosure,

would be prejudicial to the interests of the security of the State shall be admissible in evidence, without further proof, of that opinion.

(f) In this subsection references to the disclosure of information include references to the provision of documents, and cognate words shall be construed accordingly.

(3) Where compliance with a request by the Court is prohibited under the law of the State on the basis of a fundamental legal principle of general application, the Minister shall, in accordance with Article 93.3, consult with the Court to try to resolve the matter.

(4) If a request for assistance is refused, the Minister shall inform the Court or the Prosecutor of the reasons for the refusal.

(5) In accordance with Article 93.8 the Minister—

(a) may, when necessary, transmit information or documents to the Prosecutor on a confidential basis for use by him or her solely for the purpose of generating new evidence, and

(b) may subsequently consent to their disclosure.

(6) Any request mentioned in subsection(1) and any supporting or related documents shall constitute official information within the meaning of the Official Secrets Act 1963.

(7) Competing requests for assistance from the Court and from another state pursuant to an international obligation of the State, other than requests for surrender or extradition, shall be dealt with by the Minister in accordance with Article 93.9.

5. Expenses.

5.— The expenses incurred in the administration of this Act (including the contribution of the State to the funds of the International Criminal Court under Article 115 but excluding costs to be borne by the Court under Article 100) shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Domestic Jurisdiction in ICC Offences

6. Interpretation ( Part 2 ).

6.— (1) In this Part, unless the context otherwise requires—

“court” means, as appropriate, the Central Criminal Court, Special Criminal Court or, in relation to persons subject to military law, a court-martial, whether held inside or outside the State;

“crime against humanity” means any of the acts specified in Article 7;

“genocide” means any of the acts specified in Article 6;

“war crime” means any of the acts specified in Article 8.2 (except subparagraph (b)(xx)).

(2) In Articles 7 and 8 references to murder shall be construed as references to the killing of a person in such circumstances as would, if committed in the State, constitute murder.

7. Genocide, crimes against humanity and war crimes.

7.— (1) Any person who commits genocide, a crime against humanity or a war crime is guilty of an offence.

(2) The Genocide Act 1973 (the “1973 Act”) is repealed.

(3) The repeal effected by subsection(2) is without prejudice to the obligations of the State under the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly of the United Nations on 9 December 1948, the text of which is set out in Schedule 4.

(4) Notwithstanding subsection(2), proceedings under the 1973 Act may be taken after the passing of this Act for an offence under that Act committed before such passing.

8. Offences ancillary to genocide, crimes against humanity and war crimes.

8.— (1) Any person who does any act specified in paragraph3 of Article 25 (crimes ancillary to genocide, crimes against humanity and war crimes) is guilty of an offence (in this Act referred to as an “ancillary offence”).

(2) Subsection(1) is without prejudice to section 7 (penalties for assisting offenders) of the Criminal Law Act 1997.

9. Proceedings for ICC offence.

9.— (1) In this Act “ICC offence” means genocide, a crime against humanity, a war crime or an ancillary offence.

(2) No further proceedings (other than a remand in custody or on bail) shall be taken in relation to a person charged with an ICC offence except by or with the consent of the Director of Public Prosecutions.

(3) Proceedings for an ICC offence committed outside the State may be taken in any place in the State, and the offence may for all incidental purposes be treated as having been committed in that place.

(4) Without prejudice to section7(4), proceedings may not be taken in respect of conduct constituting an ICC offence if the conduct occurred before the passing of this Act.

10. Penalty for ICC offence.

10.— (1) A person convicted of an ICC offence is liable—

(a) to imprisonment for life if—

(i) the offence involves murder, or

(ii) a term of life imprisonment would be justified by the extreme gravity of the offence and the individual circumstances of the convicted person,

(b) in any other case, to imprisonment for a term not exceeding 30 years,

(c) to a fine in accordance with the criteria provided for in the Rules of Procedure and Evidence, and

(d) if the person has obtained property as a result of or in connection with the offence, to having a confiscation order made in respect of him or her under section 9 of the Act of 1994.

(2) In determining the penalty to be imposed the court shall take account of the provisions of Article 78 (determination of the sentence).

(3) Sums recovered under a confiscation order made in relation to an ICC offence shall, if the court so directs, be applied wholly or partly in reparation to victims of the conduct constituting the offence.

11. Offences against administration of justice.

11.— (1) It shall be an offence for a person to do intentionally any of the acts mentioned in paragraph 1 of Article 70 (offences against the administration of justice) in relation to proceedings—

(a) before the International Criminal Court, or

(b) before a court for an ICC offence,

and for the purposes of the proceedings mentioned in paragraph (b) references to the International Criminal Court in paragraph 1 and the first sentence of paragraph 2 of that Article shall be construed as references to a court.

(2) (a) A person convicted of an offence under subsection(1)(b) is liable—

(i) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

(b) Subject to paragraph(a)(i), the amount of any fine to be imposed shall be determined having regard to the Rules of Procedure and Evidence.

(3) No further proceedings (other than a remand in custody or on bail) shall be taken in relation to a person charged with an offence under this section except by or with the consent of the Director of Public Prosecutions.

12. Extra-territorial jurisdiction.

12.— (1) An Irish national who does an act outside the State that, if done within it, would constitute an ICC offence or an offence under section11(1) is guilty of that offence and liable to the penalty provided for it.

(2) Subsection(1) also applies in relation to a person of any other nationality who does an act outside the State that, if done within it, would constitute both—

(a) a war crime under subparagraph (a) (grave breaches of the Geneva Conventions) or (b) (other specified serious violations of the laws and customs applicable in international armed conflict) of Article 8.2, and

(b) an offence under section 3 (grave breaches of the Geneva Conventions and Protocol I thereto) of the Geneva Conventions Act 1962.

(3) An act which—

(a) is done outside the State on board an Irish ship or Irish controlled aircraft, and

(b) if done within it, would constitute an ICC offence,

is deemed for the purposes of this Act to have been done within the State.

(4) The reference in subsection(2)(b) to section 3 of the Geneva Conventions Act 1962 is to that section as amended by section 3 of the Geneva Conventions (Amendment) Act 1998 and by paragraph2 of Schedule 3.

(5) In this section—

“Irish controlled aircraft” has the meaning given to it by section 1(1) of the Air Navigation and Transport Act 1973;

“Irish ship” has the meaning given to it by section 9 of the Mercantile Marine Act 1955.

13. Applicable law.

13.— (1) The law (including common law) of the State shall, subject to subsection(2), apply in determining whether a person has committed an offence under this Part.

(2) Article 27 (application of Statute to all persons without any distinction based on official capacity) and paragraphs (a) and (b) of Article 28 (responsibility of commanders and other superiors for crimes within the jurisdiction of the International Criminal Court) shall apply, as appropriate and with any necessary modifications, in relation to any such determination.

(3) This section is without prejudice to section3(1).

14. Protection of victims and witnesses.

14.— (1) In proceedings for an offence under this Part—

(a) the measures specified in paragraphs 1 and 5 of Article 68 (protection of victims and witnesses and their participation in proceedings) shall, where appropriate, be taken during the investigation and prosecution of the offence, and

(b) the court concerned shall, where appropriate, take the measures specified in paragraphs 1 to 3 and 5 of that Article.

(2) Any such measures or the manner in which they are taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

(3) An application may be made in any such proceedings by or on behalf of the Director of Public Prosecutions for necessary measures to be taken for the protection of any servants or agents of the State involved in the proceedings and for the protection of confidential or sensitive information; and the court may grant the application if satisfied that it is in the interests of justice to do so.

PART 3 Requests by International Criminal Court for Arrest and Surrender of Persons

15. Interpretation ( Part 3 ).

15.— In this Part—

F3[‘appeal proceedings’means proceedings relating to—

(a) a complaint under Article 40.4.2°of the Constitution (including any proceedings on appeal from a decision on the complaint),

(b) an appeal on a point of law to the Court of Appeal against a surrender order or an appeal to that Court against a refusal of such an order, or

(c) an appeal to the Supreme Court (whether under Article 34.5.4°or on an appeal from a decision of the Court of Appeal);]

“provisional arrest warrant” means a warrant issued under section22(1);

“state of enforcement” means a state (other than the State) which is designated by the International Criminal Court under Article 103(1) from a list of states which have indicated to the Court their willingness to accept persons sentenced by it.

16. Effect of release under this Part.

16.— Where—

(a) a person whose surrender has been requested by the International Criminal Court for an offence within its jurisdiction is in custody under this Part, and