INTERNATIONAL CRIMINAL COURT ACT

INTERNATIONAL CRIMINAL COURT

CHAPTER 453

INTERNATIONAL CRIMINAL COURT ACT

To provide for assistance to the International Criminal Court.

13th December, 2003

ACT XXIV of 2002 .

PART 1

PRELIMINARY

The short title of this Act is the International Criminal

Court Act.

(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, 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 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, cultural, 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

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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 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 paragraph 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.

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 particular when

committed as part of a plan or policy or as part of a large-scale commission of such

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

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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 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

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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;

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(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

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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 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 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;

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(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 (e) 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.

(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 are reproduced in Schedule

I to this Act;

''the ICC Treaty'' means the Statute of the International Criminal

Court, done at Rome on 17th July, 1998;

''the ICC'' means the International Criminal Court established by

the ICC Treaty;

''genocide'' means an act of genocide as defined in article 54B of

the Criminal Code;

''crime against humanity'' means a crime against humanity as

defined in article 54C of the Criminal Code;

''war crime'' means a war crime as defined in article 54D of the

Criminal Code;

''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

(Article 16)

Articles 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;

(b) The judges acting by an absolute majority;

(c) The Prosecutor.

Such amendments shall be adopted by a two-thirds majority of the members

of the Assembly of States Parties.

3. The Elements of Crimes and amendments thereto shall be consistent with

Article 13

Exercise of jurisdiction

The Court may exercise its jurisdiction with respect to a crime referred to in

article 5 in accordance with the provisions of this Statute if -

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(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.

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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;

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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

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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

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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.

(1) 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 -

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(a) for the making of a request by the ICC or the

transmission of any supporting documents, or

(b) for the transmission of any document in consequence

of such a request,

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.

(3) Nothing in this Part shall be read and construed as

preventing the provision of assistance to the ICC otherwise than

under this Part.

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 or 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.

(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 that fact.

(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

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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 ICC

(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 subarticle (1)

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

the Second Schedule.

(6) A person who is found guilty of an offence under subarticle

(1) 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

of 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

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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 Court 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 article 95(1) 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.

(1) References in this Part to a person committing any of

the acts mentioned in the relevant article, shall be construed in

accordance with this article.

(2) Unless otherwise provided by article 7 or by the relevant

article, a person is regarded as committing an act referred to in

subarticle (1) 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.

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PART 4

ENFORCEMENT OF SENTENCES AND ORDERS

(1)

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,

(b) the detention 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.

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.

(2) Subject to the provisions of subarticle (3), 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 c riminal

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.

(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

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the ICC, the warrant authorising his detention in Malta shall

continue to have effect so as to apply to him again on his return.

(1) The prisoner shall be deemed to be in the legal custody

of the Minister at any time when, being -

(a) in Malta, or

(b) on board a Maltese vessel or aircraft,

he is being taken to or from any place or is being kept in custody.

(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.

The Minister may make regulations to provide for the

enforcement in Malta of -

(a) fines or forfeitures ordered by the ICC, and

(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 relating to the

enforcement in Malta of orders of a court of a

country or 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

Provided that different provision may be made for different

kinds of order.

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Omitted under the Statute Law Revision Act, 1980.

Omitted under the Statute Law Revision Act, 1980.

Omitted under the Statute Law Revision Act, 1980.

The relevant provisions of Articles 9, 13, 70 and 92 of the

ICC Treaty referred to in this Act are reproduced in the Second

Schedule and any reference to any such article in this Act or in any

other law shall be construed as a reference to the same article as

reproduced in the said Schedule.

Notwithstanding the provisions of any other law, the

Government is hereby authorised to ratify the ICC Treaty.

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