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 Appendix 12 - International Criminal Court

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International Criminal Court

The International Criminal Court Act 2002 came into force on 28 June 2002. Section 189 of that Act provides that the Department must publish each year, as an appendix to its annual report, a report on the operation of the Act, the operations of the International Criminal Court (ICC), and the impact of the operations of the ICC on Australia’s legal system.

Operation of the International Criminal Court Act 2002

The International Criminal Court Act 2002 establishes mechanisms to facilitate Australia’s compliance with its obligations under the Rome Statute of the International Criminal Court, including those relating to the provision of investigative assistance and the arrest and surrender of suspects.

The crimes over which the ICC can currently exercise jurisdiction—genocide, war crimes and crimes against humanity—are criminalised under Australia’s domestic law and, in each instance, apply whether or not the alleged offence occurs in Australia and regardless of whether the alleged offender is an Australian national.

Under the Rome Statute a case will be inadmissible before the ICC if the relevant conduct is being investigated or prosecuted by national authorities, unless those national authorities are unwilling or genuinely unable to carry out the investigation or prosecution. Australian authorities can therefore investigate and prosecute crimes within the ICC’s jurisdiction, allowing Australia to retain primary jurisdiction over such crimes that are alleged to have been committed in Australian territory or by Australian citizens. The International Criminal Court Act does not affect the right of Australia to exercise primary jurisdiction over these crimes.

Operations of the International Criminal Court

The Rome Statute entered into force generally on 1 July 2002, and for Australia on 1 September 2002. At the end of the reporting year, 116 countries were States Parties to the Statute.

The ICC, which is based in The Hague in the Netherlands, is the first permanent international court capable of investigating and prosecuting the most serious crimes of international concern. Its jurisdiction is currently limited to the crime of genocide, crimes against humanity and war crimes, and is confined to crimes committed after the Rome Statute entered into force.

At the first Review Conference of the ICC, which was held in Uganda from 31 May to 11 June 2010, States Parties to the Rome Statute adopted by consensus amendments that extend the ICC’s jurisdiction to three new war crimes relating to non-international armed conflict. For those States Parties that ratify the amendments, the new war crimes will come into force one year after ratification.

At that same meeting, States Parties also adopted, by consensus, amendments setting out the definition of the crime of aggression and the conditions under which the ICC’s jurisdiction over the crime could be exercised. Activation of the ICC’s jurisdiction over the crime cannot occur until 2017 at the earliest, following a two-thirds majority decision of States Parties and ratification of the amendments by at least 30 States Parties.

Australia actively participates in the Assembly of States Parties, which is the ICC’s management oversight and legislative body. The Assembly, which meets at least once a year, sets the general policies for the administration of the ICC and reviews its activities.

During the year, Australia participated in the ninth Assembly of State Parties, held from 6 to 10 December 2010. The ninth session sought to build upon the outcomes of the Review Conference, with a focus on strengthening the institutional framework of the Rome Statute system. To this end, the Assembly created a study group on governance to facilitate dialogue between States Parties and the ICC on methods for enhancing the efficiency and effectiveness of the ICC, while fully preserving its judicial independence. The Assembly also adopted a resolution on the operational mandate of the independent oversight mechanism, which was established to investigate alleged misconduct of elected officials and staff of the ICC.

The 10th session of the Assembly of States Parties will be held in New York between 12 and 21 December 2011. At this session, the Assembly is expected to elect six new judges and a new Prosecutor to replace Mr Luis Moreno-Ocampo, whose nine-year term is due to conclude in mid-2012.

During the year the ICC progressed a number of judicial proceedings. The ICC’s first trial, against Thomas Lubanga Dyilo for alleged war crimes committed in the Democratic Republic of the Congo, drew nearer to conclusion following the closure of the presentation of evidence on 20 May 2011. A verdict is expected after closing statements are presented on 25 and 26 August 2011.

The trial of Jean-Pierre Bemba Gombo for alleged war crimes and crimes against humanity committed in the Central African Republic commenced on 22 November 2010. In addition, the initial appearance hearings for six alleged perpetrators of post-election violence in Kenya were held on 7 and 8 April 2011. A challenge by the Kenyan Government to the admissibility of these cases was rejected by the ICC on 30 May 2011.

Nine unsealed arrest warrants issued by the ICC in respect of its investigations into the situations in the Democratic Republic of the Congo, Uganda and the Darfur region of Sudan remained outstanding at the end of the reporting year. Two of these warrants were for the arrest of the President of Sudan, Omar Hassan Ahmad Al Bashir. A warrant for the arrest of Callixte Mbarushimana was executed by French authorities on 11 October 2010. The alleged Executive Secretary of the Democratic Forces for the Liberation of Rwanda, Mbarushimana was subsequently surrendered to the ICC to face charges of war crimes and crimes against humanity relating to the situation in the Democratic Republic of the Congo. These charges were to be confirmed by the ICC on 17 August 2011.

In 2010–11, the Office of the Prosecutor commenced an investigation into the situation in the Libyan Arab Jamahiriya following a unanimous referral by the United Nations Security Council. On 27 June 2011 the ICC issued arrest warrants against Muammar Gaddafi, Saif Al Islam Gaddafi and Abdullah Al-Sanussi for alleged crimes against humanity committed in Libya in February 2011.

On 23 June 2011 it was announced that the Prosecutor had sought authorisation from the ICC to commence an investigation into war crimes and crimes against humanity allegedly committed in Côte d’Ivoire since 28 November 2010. This was the first time that an application had been made to open an investigation into a situation in a State that had not acceded to the Rome Statute but that had nevertheless accepted the jurisdiction of the ICC. All previous cases before the ICC had related to alleged crimes committed on the territory of State Parties to the Rome Statute, or had otherwise commenced following a referral from the United Nations Security Council.

For further information about the ICC, see <http://www.icc-cpi.int>.

Impact of the operations of the International Criminal Court on Australia’s legal system

During the reporting year, the operations of the ICC had no discernible impact on Australia’s legal system. The future impact of ICC operations is expected to depend on the number of active prosecutions and investigations it undertakes and the number and nature of requests for assistance Australia receives.

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