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Derechos | Equipo Nizkor
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Derechos | Equipo Nizkor
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08Nov02 - MLT
International Criminal Court Act, 2002
- Malta -
GUIDO DE MARCO
President
8th November, 2002ACT No. XXIV of 2002
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows: -
* * * [CHAPTER 453
INTERNATIONAL CRIMINAL COURT ACT
To provide for assistance to the International Criminal Court.
ACT XXIV of 2002.]PART 1
PRELIMINARY1. (1) The short title of this Act is the International Criminal Court Act, 2002.
(2) The provisions of this Act shall come into force on such date as the Minister responsible for Justice may by notice in the Gazette appoint. and different dales may be so appointed for different provisions and different purposes thereof.
2. (1) In this Act, unless the context otherwise requires:
"ICC crime"" means a crime (other than the crime of aggression) over which the ICC has jurisdiction in accordance with the ICC Treaty the relevant provisions of which arc reproduced in Schedule 1 to this Act;
"the ICC Treaty" means the Statute of the International Criminal Court, done at Rome on 17th July. 1988.
"the ICC" means the International Criminal Court established by the ICC Treaty:
"genocide" means an act of genocide as defined in article 54B;
"crime against humanily" means a crime againsl humanity as defined in article 54C;
"war crime" means a war crime as defined in article 54 D;
"Minister" means the Minister responsible for Justice.(2) In interpreting and applying the provisions of this Act the court shall take into account the original text of the ICC Treaty and of any treaty and convention referred to in the ICC Treaty.
PART 2 ASSISTANCE TO THE ICC
3. (l) The powers conferred by this Part on the Minister are exercisable for the purpose of providing assistance to the ICC in relation to investigations or prosecutions where-
(a) an investigation has been initiated by the ICC, and
(b) the investigation and any proceedings arising out of it have not been concluded.(2) Where facsimile transmission is used -
(a) for the making of a request by the ICC or the transmission of any supporting documents, or
this Part applies as if the documents so sent were the originals of the documents so transmitted. Any such document shall be receivable and admissible in evidence accordingly.
(b) for the transmission of any document in consequence of such a request,(3) Nothing in this Part shall be read and construed as preventing the provision of assistance to the ICC otherwise than under this Part.
4. The Minister may make regulations providing for the meeting of requests for assistance by the ICC and in particular and without prejudice to the "generality of that power may make regulations prescribing the conditions and procedures for the execution of any such request for all ort any of the following purposes:
(a) the questioning of persons being investigated or prosecuted by the ICC;
(b) the taking or production of evidence;
(c) the service of any document or act of the proceedings before the ICC;
(d) the temporary transfer to the ICC of a prisoner for purposes of identification or for obtaining testimony or other assistance;
(e) the entry into and search of any premises and the seizure of any item;
(f) the taking of fingerprints or non-intimate samples:
(g) the exhumation of any body;
(h) the provision of records and documents;
(i) the investigation of proceeds of any ICC crime;
(j) the freezing or seizure of proceeds for eventual forfeiture;
(k) the verification of any evidence or other material.5. (1) Nothing in any of the provisions of this Part, requires or authorises the production of documents, or the disclosure of information, which would be prejudicial to the security of Malta.
(2) For The purposes of any such provision a certificate signed by or on behalf of the Prime Minister to the effect that it would be prejudicial to the security of Malta for specified documents to be produced, or for specified information to be disclosed, is conclusive evidence of thai fact.
6. (1) Any evidence or other material obtained under this Part by a person other than the Attorney General, together with any requisite verification, shall be sent to the Attorney General who shall make arrangements for the transmission of the evidence or other material to the ICC
(2) Where any evidence or other material is to be transmitted to the ICC, there shall be transmitted-
(a) where the material consists of a document, the original or a copy, and
(b) where the material consists of any other article, the article itself or a photograph or other description of it,as may be necessary to comply with the request of the ICC.
PART 3
OFFENCES IN RELATION TO THE ICC7. (1) It shall be an offence for any person to intentionally commit any of the acts mentioned in Article 70.1 of the ICC Treaty (offences against the administration of justice in relation to the ICC), hereinafter in this Part referred to as "the relevant article".
(2) In interpreting and applying the provisions of the relevant article the court shall take into account any relevant judgment or decision of the ICC and may also take into account any other relevant international jurisprudence.
(3) Without prejudice to the provisions of article 5 of the Criminal Code, a criminal action may also be prosecuted in Malta against any citizen of Malta or permanent resident in Malta who shall have become guilty of an offence mentioned in sub-article (1) of this article although the offence may have been committed outside Malta.
(4) Proceedings for an offence under this article shall not be instituted except by or with the consent of the Attorney General.
(5) The relevant provisions of the relevant article are set out in Schedule II of this Act.
(6) A person who is found guilty of an offence under sub-article (1) of this article shall be liable to punishment as follows:
(a) where the offence consists of the act mentioned in paragraph (a) of the relevant article, to the punishment laid down in articles 104,105,107 of the Criminal Code for the corresponding circumstances of the case;
(b) where the offence consists of the act mentioned in paragraph (b) of the relevant article, to the punishment laid down in article 103 of the Criminal Code;
(c) where the offence consists of any of the acts mentioned in paragraph (c) of the relevant article to the punishment laid down in articles 102, 110, or 111 or the Criminal Code for the corresponding circumstances of the case;
(d) where the offence consists of any of the acts mentioned in paragraph (d) of the relevant article:(i) to the punishment of imprisonment from two to five years if the official of the Court properly performs his or her duties; or
(ii) to the said punishment increased by two or three degrees where the official of the Court fails to perform, or improperly performs, his or her duties; or
(iii) to any punishment higher than imprisonment for a term of five years to which a person accused of an ICC crime may have been sentenced where the official of the Coun fails to perform, or improperly performs, his or her duties in or in connection with the trial of that person;(e) where the offence consists of the act mentioned in paragraph (e) of the relevant article, to the punishment laid down in sub-article (1) of article 95 of the Criminal Code as the circumstances of the case may be;
(f) where the offence consists of any of the acts mentioned in paragraph (f) of the relevant article, the offender may be dealt with as for the corresponding offence under articles 115 and 121(4 )(d) of the Criminal Code and shall be liable to punishment accordingly.8. (1) References in this Part to a person commiting any of the acts mentioned in the relevant article, shall be construed in accordance with this article.
(2) Unless otherwise provided by article 7 of this Act or by the relevant article, a person is regarded as committing an act referred to in sub-article (1) of this article 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 article (which corresponds to article 30 of the ICC Treaty) the court shall take into account any relevant judgment or decision of the ICC and may also take into account any other relevant international jurisprudence.
PART 4 ENFORCEMENT OF SENTENCES AND ORDERS
9. (I) This article applies where -
(a) Malta is designated by the ICC as the state in which a person, hereinafter in this Part referred to as "the prisoner", is to serve a sentence of imprisonment imposed by the ICC, and
(b) the Minister informs the ICC that the designation is accepted.(2) The Minister shall issue a warrant authorising -
(a) the bringing of the prisoner to Malta,
The provisions of the warrant may be varied by the Minister, and shall be so varied to give effect to any variation of the ICC's sentence,
(b) thedetention of the prisoner in Malta in accordance with the sentence of the ICC, and
(c) the taking of the prisoner to a prison, within the meaning of the Prisons Act, in Malta.(2) Subject to the provisions of sub-article (3) of this article, a prisoner subject to a warrant authorising his detention in a prison in Malta shall be treated for all intents and purposes as if he were subject to a sentence of imprisonment imposed in exercise of criminal jurisdiction by a court in Malta.
(3) The provisions of any regulations made under the Prisons Act shall apply to a prisoner under this Part subject to such modifications, adjustments or adaptations as the Minister may by regulations under this subarticle prescribe after consultation with the Minister responsible for prisons.
10. (1) This article applies where the Minister receives a request from the ICC --
(a) for the temporary return of the prisoner to the custody of the ICC for the purposes of any proceedings, or
(b) for the transfer of the prisoner to the custody of another state in pursuance of a change in designation of state of enforcement.(2) The Minister shall -
(a) issue a warrant authorising the prisoner's temporary return or transfer in accordance with the request,
(b) make the necessary arrangements with the ICC or, as the case may be, the other state, and
(c) give such directions as to the custody, surrender and, where appropriate, return of the prisoner as appear to him appropriate to give effect to the arrangements.(2) Where the prisoner is temporarily returned to the custody of the ICC, the warrant authorising his detention in Malta shall continue to have effect so as to apply to him again on his return.
11. (1) The prisoner shall be deemed to be in the legal custody of the Minister at any time when, being-
(a) in Malta, or
he is being taken to or from any place or is being kept in custody.
(b) on board a Maltese vessel or aircraft,(2) The Minister may, from time to time, designate a person as a person who is for the time being authorised to take the prisoner to or from any place or to keep the prisoner in custody.
(3) A person so authorised has all the powers, authority, protection and privileges of a police officer.
(4) If the prisoner escapes or is unlawfully at large, he may be arrested without warrant by the police and taken to any place to which he may be taken under the warrant issued under any provision of this Part.
12. The Minister may make regulations to provide for the enforcement in Malta of-
(a) fines or forfeitures ordered by the ICC, and
Provided that different provision may be made for different kinds of order.
(b) orders by the ICC against convicted persons specifying reparations to, or in respect of victims,
and in particular and without prejudice to the generality of that power may make regulations which:(i) authorise the Minister to appoint a person to act on behalf of the ICC for the purposes of enforcing the order and to give that person such directions as appear necessary to the Minister;
(ii) require the registration in the Public Registry of any order to which this article applies and providing for the effects of such registration:
(iii) apply all or any of the provisions enforcemenl in Malta of orders of a court territory outside Malta;
(iv) provide that the reasonable costs for and incidental to the registration and enforcement of an order are recoverable as if they were sums recoverable under the order;
(v) provide for the recovery of fines as a civil debt or for the conversion into imprisonment or detention of any such fines in default of payment:PART 5 ICC CRIMES
13. (1) The Criminal Code shall be amended as follows:
(a) in paragraph (d) of sub-article (1) of article 5 thereof, immediately after the words "shall have become guilty" there shall be inserted the words "of the offences mentioned in article 54A or";
(b) Title I of Part II of Book First of the Criminal Code shall be renumbered "Title I Bis" and immediately before il there shall be inserted the following new Title":"Title I
OF GENOCIDE. CRIMES AGAINST HUMANITY AND WAR CRIMES54A, (1) It is a crime for a person to commit genocide, a crime against humanity or a war crime.
(2) In this Title -
"the ICC Treaty" means the Statute of the International Criminal Court,done at Rome on 17th July, 1988;
"the ICC means the International Criminal Court established by the ICC Treaty;
"genocide" means an act of genocide as defined in article 54 B;
"crime against humanity" means a crime against humanity as defined in article 54C;
"war crime" means a war crime as defined in article 54D;
"Minister" means the Minister responsible for Justice.(3) In interpreting and applying the provisions of this Title the court shall take into account the original text of the ICC Treaty and of any treaty and convention referred to in the ICC Treaty.
(4) In interpreting and applying the provisions of articles 54B. 54C and 54D, hereinafter, in this Title, referred to as "the relevant articles", the court shall take into account -
(a) any relevant Elements of Crimes adopted in accordance with article 9 of thelCC Treaty, and
(b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Giminal Courtadopted on 30th June, 2000.(5) The Minister may set out in regulations the text of the Elements of Crimes referred to in sub-article (2) of this article, as amended from time to time.
(6) The relevant articles shall for the purposes of this Title he construed subject to and in accordance with any relevant reservation or declaration made by Malta when ratifying any treaty or agreement relevant to the interpretation of those articles.
(7) The Minister may by regulations set out the terms of any reservation or declaration referred to in sub-article (5) of this article and where any such reservation or declaration is withdrawn in whole or in part may revoke or amend any regulations as aforesaid which contain the terms of that reservation or declaration.
(8) In interpreting and applying the provisions of the relevant articles the court shall take into account any relevant judgement or decision of the ICC and may also take into account any other relevant international jurisprudence.
54B. (1) Genocide is committed where any of the following acts is 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 with in the group;(e) forcibly transferring children of the group to another group.
(2) Whosoever directly and publicly incites others to commit genocide shall be guilty of a crime.
54C (1) A crime against humanity is committed where any of the following acts is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) murder;
(b) extermination;
(c) enslavement:
(d) deportation or forcible transfer of population;
(e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) torture;
(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in sub-article (3), or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this sub-article or arny crime under article 54A;
(i) enforced disappearance of persons;
(j) the crime of apartheid;
(k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body of to mental or physical health.(2) For ibe purpose of sub-article (1):
(a) "attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in sub-article (1) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
(b) "extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated lo bring about the destruction of pan of a population,
(c) "enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
(d) "deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) "torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f) "forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
(g) "persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h) "the crime of apartheid" means inhumane acts of a character similar to those referred to in sub-article (1), committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
(i) "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.(3) For the purpose of this Title, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
54D. A war crime is committed where any of the following acts is committed:
(a) grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) wilful killing;
(ii) torture or inhuman treatment, including biological experiments;
(iii) wilfully causing great suffering, or serious injury to body or health;
(iv) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) unlawful deportation or transfer or unlawful confinement;
(viii) taking of hostages;(b) other serious violations of the laws and customs applicable in international armed conflict, within the established frame work of international law, namely, any of the following acts:
(i) intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iii) intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or ci vilian objects under the international law of armed conflict;
(iv) intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilians objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v) attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
(vi) killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
(vii) making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
(viii) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
(ix) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
(x) subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
(xi) killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii) declaring that no quarter will be given;
(xiii) destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;
(xiv) declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
(xv) compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;
(xvi) pillaging a town or place, even when taken by assault;
(xvii) employing poison or poisoned weapons;
(xviii) employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(xix) employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;.... .omissis.....
(xxi) committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(xxii) committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in paragraph (f) of sub-article (2) of article enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
(xxiii) utilizing the presence of a civilian or other protected person to render certain points, area or military forces immune from military operations;
(xxiv) intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(xxv) intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
(xxvi) conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities;(c) In the case of :an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acls committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kind, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable;(d) paragraph (c) of this article applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature;
(e) other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:(i) intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(iii) intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
(iv) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
(v) pillaging a town or place, even when taken by assault;
(vi) committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in paragraph (f) of sub-article (2) of article 54C, enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
(vii) conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities:
(viii) ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
(ix) killing or wounding treacherously a combatant adversary;
(x) declaring that no quarter will be given;
(xi) subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
(xii) destroying or seizing the property of an adversary unless such destruction or seizure he imperatively demanded by the necessities of the conflict;(f) paragraph (e) of this article applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
54E (1) This article applies in relation to offences under this Part.
(2) A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or (as the case may be)_ his effective authority and control, as a result of his failure to exercise control properly over such forces where -
(a) he either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences, and
(b) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.(3) With respect to superior and subordinate relationships not described in sub-article (2), a superior is responsible for offences committed by subordinates under his effective authority and control, as a result of his failure to exercise control properly over such subordinates where -
(a) he either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such offences.
(b) the offences concerned activities that were within his effective responsibility and control, and
(c) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.(4) A person responsible under this article for an offence is regarded as an accomplice in the commission of the offence.
(5) In interpreting and applying the provisions of this article (which corresponds to article 28 of the ICC Treaty) the court shall take into account any relevant judgment or decision of the ICC and account may also be taken of any other relevant international jurisprudence.
(6) Nothing in this article shall be read as restricting or excluding -
(a) any liability of the commander or superior apart from this article, or
(b) the liability of persons other than the commander or superior.54F. (1) References in this Part to a person commiting -
(a) genocide,
shall be construed in accordance with this article.
(b) a crime against humanity, or
(c) a war crime,(2) Unless otherwise provided by-
(a) the articles mentioned in the deli ntion in article 54A(1) of the crimes specified in sub-article (1)(a) to(c) of this article,or in any relevant Elements of Crimes referred to in article 54A(3),
a person is regarded as committing a crime referred to in sub-article (1) only if the material elements of the crime are committed with intent and knowledge.
(b) article 54E,(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 article (which corresponds to article 30 of the ICC Treaty) the court shall take into account any relevant judgment or decision of the ICC and may also take into account any other relevant international jurisprudence.
54G. Without prejudice to the provisions of article 5, a criminal action for an offence under this Title may also be prosecuted in Malta:
(a) against any person subject to military law in terms of articles 178, 179 and 180 of the Malta Armed Forces Act even if the offence was committed outside Malta; or
(b) against any citizen of Malta or permanent resident in Malta who outside Malta conspires to commit any offence under this Title even if the offence is to be committed outside Malta.54H. The provisions of any law which make provision for the protection of victims and witnesses of certain offences shall apply mutatis mutandis to any victim or witness of an offence under this Title.
54L. (1) The following provisions apply in relation to offences under this Title.
(2) Proceedings for an offence shall not be instituted except by or with the consent of the Attorney General.
(3) A person convicted of an offence involving murder shall be dealt with as for an offence consisting in the killing of a person in such circumstances as would, if committed in Malta, constitute wilful homicide.
(4) In any other case a person convicted of an offence is liable to imprisonment for a term not exceeding 30 years.
(5) The provisions of Title VI of Part III of Book Second of this Code do not apply.".PART 6. ARREST AND SURRENDER OF PERSONS
14. The Extradition Act shall be amended as follows:
(a) in sub-article (1) of article 2 thereof, for the words "unless the context" there shall he substituted the words ""other than in Part VI thereof and unless the context"; and
(b) Part VI thereof shall be renumbered as Part VII and immediately after article 26 thereof, before Part VIIlas renumbered, there shall be inserted the following new Part VI:
"Part VI
Surrender of Offenders to the International Criminal Court26A. Only the provisions of this Part, save where otherwise expressly indicated, shall apply to requests from the ICC for the arrest and surrender of a person alleged to have committed an ICC crime, or to have been convicted by the ICC.
26B. (1) In this Part, unless the context otherwise requires -
"delivery order" has the same meaning assigned to it by sub-article 26E;
"ICC crime" means a crime (other than the crime of aggression) over which the ICC has jurisdiction in accorciance with the ICC Treaty the relevant articles of which are reproduced in Schedule I to the International Criminal Court Act;
"the ICC" means the International Criminal Court established by the ICC Treaty;
"the ICC Treaty" means the Statute of the International Criminal Court, done at Rome on the 17th July, 1998;
"the Minister" means the Minister responsible for Justice,(2) Words and phrases used in this part and used also in the ICC Treaty shall have the same meaning assigned to them in the said ICC Treaty.
26C. (1) Where the Minister receives a request from the ICC for the arrest and surrender of a person alleged to have committed an ICC crime, or to have been convicted by the ICC, be shall transmit the request and the documents accompanying it to the Attorney General.
(2) If the request is accompanied by a warrant of arrest and the Attorney General is satisfied that the warrant appears to have been issued by the ICC, he shall apply to a Magistrate to authorise the execution of the warrant. The Magistrate shall authorise such execution where he is satisfied that the warrant purports to have been issued by the ICC.
(3) If in the case of a person convicted by the ICC the request is not accompanied by a warrant of arrest, but is accompanied by --(a) a copy of the judgment of conviction,
the Attorney General shall apply to a Magistrate for the issue of a warrant for the arrest of the person to whom the request relates and shall attach the documentation and information referred to in this sub-article.
(b) information to demonstrate that the person sought is the one referred to in the judgment of conviction, and
(c) where the person sought has been sentenced, a copy of the sentence imposed and a statement of any time already served ,and the time remaining to he served,(4) The Magistrate shall issue the warrant where he is satisfied that it appears that the person sought has been convicted by the ICC and that the documentation and information referred in in this article has been produced.
(5) The provisions of sub-articles (4) and of the articles referred to in sub-article (5) of article 14 shall apply to a warrant issued under this Part.26D. (1) When the Minister receives from the ICC a request for the provisional arrest of a person alleged to have committed an ICC crime or to have been convicted by the ICC be shall transmit the request and the documents accompanying it to the Attorney General.
(2) Upon an application by the Attorney General stating that he has reason to believe -(a) that a request has been made by the ICC for the arrest of a person, and
(b) that the person is in, or on his way to, Malta,a Magistrate shall issue a warrant for the arrest of that person and shall notify the Minister of the issue of the warrant.
26E. (1) The provisions of sub-article (1) of article 15, other than the reference therein to sub-article (3) of article 14, shall mutatis mutandi apply to a person arrested under a provisional warrant under this Part.
(2) If an arrest warrant issued under article 26C is produced to the court in respect of the person brought before it, the court shall proceed as if he had been arrested under that warrant. If no such warrant is produced the court shall remand him pending the production of such a warrant.
(3) The Minister may make regulations specifying -(a) the period for which a person may be so remanded at any time, and
(b) the total period for which a person may be so remanded,having regard to the time limits specified in Rules of Evidence and Procedure for the purposes of Article 92.3 of the ICC Treaty.
(4) If at any time when the person is remanded as aforesaid there is produced to the court a warrant issued under article 26C in respect of him-
(a) the court shall terminate the period of remand, and
(b) he shall be treated as if arrested under that warrant -(i) if he was remanded in custody, at the time the warrant was produced to the court;
(ii) if he was remanded on bail, when he surrenders to his bail.(5) If no such warrant is produced to the court before the end of the period of remand (including any extension of that period), the court shall discharge him.
(6) The fact that a person has been discharged under this article does not prevent his subsequent arrest under a warrant issued under article 26C.26F. (1) The provisions of sub article (1) of article 26E shall apply to a person arrested under a warrant issued under article 26C.
(2) If the court satisfied-
(a) that the warrant-
it shall make a delivery order.(i) is a warrant of the ICC, or
(ii) has been duly issued under article 26C (3) , and(b) that the person brought before the court is the person named or described in the warrant,
(3) A "delivery order" is an order that the person be delivered up-
(a) into the custody of the ICC, or
in accordance with arrangements made by the Minister.
(b) if the ICC so directs in the case of a person convicted by the ICC, into the custody of the state of enforcement,(4) In the case of a person alleged to have committed an ICC crime, the court may adjourn the proceedings pending the outcome of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the ICC.
(5) In deciding to make a delivery order the court is not concerned to enquire -(a) whether any warrant issued by the ICC was duly issued, or
(b) in the case of a person alleged to have committed an ICC crime, whether there is evidence to justify his trial for the offence he is alleged to have committed.26G. (1) When a person arrested under this Part is brought before the court that person may consent to being delivered up into the custody of the ICC or, in the case of a person convicted by the ICC, of the state of enforcement. Such consent is referred to in this Part us "consent to surrender".
(2) When the person arrested gives his consent to surrender, the court, upon being satisfied of the voluntariness of the consent, shall make a delivery order and all the provisions of this Part for that person's surrender shall be deemed to be satisfied.
(3) No appeal shall lie from a delivery order made under this article.Proceedings where court refuses delivery order
26H. (1) Where the court refuses to make a delivery order it shall nevertheless make an order remanding the person arrested into custody and that person shall remain in custody as provided in the proviso to sub-article (3) of article 15,
(2) The court shall notify the Minister of its decision not to make a delivery order and of the grounds for it.26I. Where the court refuses to make a delivery order the provisions of article 19 shall mutatis mutandis apply and if the Court of Criminal Appeal allows the appeal it shall make a delivery order which shall be treated, for all purposes other than an appeal therefrom, as an order committing to custody the person to be delivered up.
Proceedings where court makes delivery order
26J. (1) Where the court makes a delivery order in respect of a person, the court shall -
(a) commit the person to custody to await the Minister's directions as to the execution of the order,
(b) notify the Minister of its decision.(2) Saving the provisions of article 26K, the provisions of articles 16 and 17 shall mutatis mutandis apply to a person committed to custody under this article.
26K. Saving the provisions of article 26L, the person to be delivered up following a delivery order may appeal from the order to the Court of Criminal Appeal and the provisions of article 18 shall mutatis mutandis apply to the appeal.
26L. (1) A person in respect of whom a delivery order has been made may waive his right of appeal and his right to apply for redress under the Constitution and any other right to apply for review of the lawfulness of his arrest and detention.
(2) Where a person has waived his rights as provided in sub-article (1), the court shall satisfy itself of the voluntariness of the waiver whereupon the delivery order shall be taken for all purposes of law to be validly made.
26M. (1) A delivery order is sufficient authority for any person acting in accordance with the directions of the Minister to receive the person to whom the order relates, keep him in custody and convey him to the place where he is to be delivered up into the custody of the ICC (or, as the case may be, of the state of enforcement) in accordance with arrangements made by the Minister.
(2) If a person in respect of whom a delivery order is in force escapes or is unlawfully at large, he may be arrested by the Police without warrant and taken to any place where or to which, by virtue of this Part, he is required to be or to be taken.
(3) The provisions of sub-article (2) of article 21 shall mutatis mutandis apply to any person in respect of whom a delivery order was made.Bail, discharge, transit and unscheduled landing
26N. (1) Where an application for bail is made in proceedings under this Part -
(a) the court shall notify the Minister of the application,
(b) the Minister shall consult with the ICC, and
(c) bail shall not be granted without full consideration of any recommendations made by the ICC.(2) In considering any application for bail under this article the court shall consider -
(a) whether, given the gravity of the offence or offences which the person is alleged to have committed or, as the case may be, of which he has been convicted by the ICC, there are urgent and exceptional circumstances justifying release on bail, and
(b) whether any necessary measures have been or will be taken to secure that the person will surrender to custody in accordance with the terms of his bail.26O. (l) If the person in respect of whom a delivery order has been made is not delivered up under the order within the period of two months beginning with the first day on which, having regard to the provisions of sub-article (3) of article 26M of this Act, he could have been returned he may apply to the Court of Criminal Appeal, sitting as a court of appeal from judgments of the Court of Magistrates, for his discharge.
(2) Upon such application the provisions of sub-article (2) of article 24 shall mutatis mutandis apply so however that the reference to the warrant under that sub-article shall be construed as a reference to the delivery order.
26P. Where the ICC informs the Minister that a person arrested under this Part is no longer required to be surrendered -
(a) the Minister shall notify the Attorney General of that fact, and
(b) the Attorney General shall, on receipt of the notification, apply to the court for an order discharging the person arrested.26Q. (1) This article applies where the Minister receives a request from the ICC for transit of a person being surrendered by another state.
(2) If the Minister accedes to the request -
(a) the request shall be treated for the purposes of this Part as if it were a request for that person's arrest and surrender,
(b) the execution of the warrant accompanying the request shall be deemed to have been authorised under sub-article (2) of article 26C, and
(c) the person to whom the request relates shall, subject to the provisions of this article, be treated on arrival in Malta as if he had been arrested under that warrant.(3) In relation to a case where this section applies-
(a) it shall be incumbent upon the court before whom the person to whom the request relates is produced in pursuance of the provisions of article 26F(2)(a)(i)to ascertain that the Minister has acceded to the request for transit; and
(b) article 16 to which reference is made in article 26J(2) shall have effect as if the reference to fifteen days were a reference to two working days.(4) A person in transit under this article shall not be granted bail.
26R. (1) If a person being surrendered by another state makes an unscheduled landing in Malta, he may be arrested by the Police without warrant whereupon the provisions of sub-article (1) of article 15, other than the reference therein to sub-article (3) of article 14 and subject lo the provisions of this article, shall mutatis mutandis apply.
(2) The court shall remand him in custody pending -
(a) receipt by the Minister of a request from the ICC for his transit, and
(b) the Minister's decision whether to accede to the request.(3) If no such request is received by the Minister before the end ninety-six hours beginning with the time of the arrested person's unscheduled landing -
(a) the Minister shall forthwith notify the court of that fact, and
(b) the court shall, on receipt of the notification, discharge the arrested person.(4) If the Minister receives such a request before the end of that period, he shall notify the court without delay of his decision whether to accede to the request.
(5) If the Minister notifies the court that he has decided to accede to the request -(a) the court shall, on receipt of the notification, terminate the period of remand, and
(b) the provisions of article 26Q shall apply with the substitution for the reference to the time of arrival in Malta in sub-article (2)(c) thereof of a reference to the time of notification to the court under this sub-article.(6) If the Minister notifies the court that he has decided not to accede to the request, the court shall, on receipt of the notification, discharge the arrested person.
Supplementary provisions
26S. (1) Any state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Treaty does not prevent proceedings under this Part in relation to that person.
(2) Where-
(a) state or diplomatic immunity attaches to a person by reason of a connection with a state other than a state party to the ICC Treaty, and
the waiver shall be treated as extending to proceedings under this Part in connection with that request.
(b) waiver of that immunity is obtained by the ICC in relation to a request for that person's surrender,(3) A certificate by the Minister -
(a) that a state is or is not a party to the ICC Treaty, or
is conclusive evidence of that fact for the purposes of this Part.
(b) that there has been such a waiver as is mentioned in sub-article (2),(4) The Minister may in any particular case, after consultation with the ICC and the state concerned, direct that proceedings (or futher proceedings) under this Part which, but for sub-article (1) or (2), would be prevented by state or diplomatic immunity attaching to a person shall not be taken against that person.
(5) The power to make regulations conferred by sub-article (1) of article 3 of the National Interest (Enabling Powers) Act includes the power to make in relation to any proceedings such provision corresponding to the provision made by this article in relation to the proceedings, but with the omission-(a) in sub-article (1), of the words "by reason of a connection with a state party to the ICC Treaty", and
as it appears to the Prime Minister to be necessary or expedient in consequence of such a referral as is mentioned in article 13(b) (referral by the United Nations Security Council).
(b) of sub-articles (2) and (3),(6) In this article "state or diplomatic immunity" means any privilege or immunity attaching to a person, by reason of the status of that person or another as head of state, or as representative, official or agent of a state, under -
(a) the Diplomatic Immunities and Privileges Act. Cap. 191, the Consular Conventions Act, Cap. 144, the European Communities (Establishment of Delegation) Act, Cap. 344, the Membership of International Financial Organisations Act, Cap. 235,
(b) any other legislative provision made for the purpose of implementing an international obligation, or
(c) any rule of law derived from customary international law.26T. The Minister may make regulations for the better carrying into effect the provisions of this part and without prejudice to the generality of the aforesaid may by such regulations make provision in respect of cases where he receives a request for the arrest or surrender, or provisional arrest, of a person --
(a) against whom criminal proceedings are pending or in progress before a court in Malta, or who has been dealt with in such proceedings, or
(b) against whom extradition proceedings are pending or in progress in Malta, or in respect of whom a warrant or order has been made in such proceedings.26U. (1) For the purposes of this Part the copy of a warrant issued by the ICC that is transmitted to the Secretary of State Minister shall be treated as if it were the orginal warrant.
(2) Where facsimile transmission is used -
(a) for the making of a request by the ICC or the transmission of any supporting documents, or
this Part applies as if the documents so sent were the originals of the documents so transmitted and shall be receivable and admissible in evidence accordingly.
(b) for the transmission of any document in consequence of such a request,(3) Where the ICC amends a warrant of arrest, the provisions of this Part apply to the amended warrant as if it were a new warrant; sohowever that this does not affect the validity of anything done in reliance on the old warrant".
15. In paragraph (c) of article 4 of the Prisons Act,Cap. 260, for the words "foreign court" there shall be substituted the words "foreign or international court" and immediately after the words "for that purpose" there shall be inserted the words "to which Malta is a party or which is".
16. The relevant provisions of Articles 9, 13, 70 and 92 of the ICC Treaty referred to in this Act are reproduced in Schedule II to this Act and any reference to any such article in this Actor in any other law shall be construed as a reference to the same article as reproduced in the said Schedule.
17. Notwithstanding the provisions of any other law. the Government is hereby authorised to ratify the ICC Treaty,
SCHEDULE I
(Article 2)Crimes within the Jurisdiction of the International Criminal Court
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, is 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.Article 7 Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, culturah religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
(b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the eserciseof such power in the course of trafficking in persons, in particular women and children;
(d) ''Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused, except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national Laws relating to pregnancy;
(g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason uf the identity of the group or collectivity;
(h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph l, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
(i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.1. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
Article 8 War crimes
1. The Court shall have jurisdiction in respect of war crimes in part icular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages;(b) Other serious violations of the laws and customs applicable in intemational armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury:
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service bef ore the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids materials or devices;......omissis......
(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;
(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv)The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.(d)Paragraph 2 (c) applies to armed conflicts not at an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled, to the protection given to civilians or civilian objects under the international law of armed conflict;
(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization,and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital, treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;
(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.(f) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.
SCHEDULE II
Article 16Articles of the ICC Treaty referred to in the Act
Article 9 Elements of Crimes
1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6,7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.
2. Amendments to the Elements of Crimes may be proposed by:
(a) Any State Party;
Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.
(b) The judges acting by an absolute majority;
(c) The Prosecutor.3. The Elements of Crimes and amendments thereto shall be consistent with this Statute
Article 13 Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in articles in accordance with the provisions of this Statute if:
........omissis.........
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;
Article 70 Offences against the administration of justice
1. The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally:
(a) Giving false testimony when under an obligation pursuant to Article 69, paragraph 1, to tell the truth;
(b) Presenting evidence that the party knows is false or forged;
(c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence;
(d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;
(e) Retaliating against an official of the Court on account of duties performed by that or another official;
(f) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties.......omissis......
4 (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals;
......omissis......
NOTE:
Article 69,1, referred to in Article 70.1(a), provides as follows:
"1 Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness.".
Article 92 Provisional arrest
......omissis......
3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in Article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.
Passed by the House of Representatives at Sitting No. 809 of the 4th November, 2002.
ANTON TABONE
SpeakerRICHARD J. CAUCHI
Clerk to the House of Representatives
[Source: Legislation database Laws of Malta, Ministry for Justice, Culture and Local Government, Republic of Malta.]
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