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Appendix 7: The International Criminal Court

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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.

Operation 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, 122 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 crimes of genocide, crimes against humanity and war crimes, and is confined to crimes committed after the Rome Statute entered into force.

During the year, Australia participated in the eleventh session of the Assembly of States Parties, held from 14 to 22 November 2012. At the eleventh session, the Assembly of States Parties elected a new Deputy Prosecutor as well as the members of the newly formed Advisory Committee of Judicial Nominations. Further, the Assembly adopted eight resolutions on: the 2013 budget, amendment to the Rules of Procedure and Evidence, permanent premises, the Independent Oversight Mechanism, cooperation with the court, complementarity, victims and reparations, and strengthening the International Criminal Court and the Assembly of States Parties. The next session of the Assembly of States Parties will be held in The Hague, the Netherlands, between 20-28 November 2013.

During the year the ICC continued a number of judicial proceedings in respect of situations in each of the Democratic Republic of Congo, the Central African Republic, Libya, Cote d'Ivoire, Kenya, Uganda, the Sudan and Mali. These proceedings currently range from the investigation to appeal stages and predominately address cases of war crimes and crimes against humanity.

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 undertaken and the number and nature of requests for assistance received by Australia.

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