Commentary on Sections Part 5: Offences under Domestic Law Section 50: Meaning of “genocide”, “crime against humanity” and “war crime”
86.Subsection (1) provides that genocide, crimes against humanity and war crimes shall be as defined in the relevant Articles of the ICC Statute, i.e. Articles 6, 7 and 8.2, which are set out in Schedule 8. Subsection (6) provides that no account is to be taken for the purposes of Part 5 of provisions of those Articles not included in Schedule 8 (see paragraph 157 below).
87.Subsection (2) provides that, when trying these offences, domestic courts must take into account any relevant Elements of Crimes adopted by the Assembly of States Parties in accordance with Article 9 of the Statute. To enable domestic courts effectively to prosecute offences under this section even before the Assembly of States Parties meets, subsection (2)(b) requires domestic courts to take into account the finalized draft Elements of Crimes adopted by the Preparatory Commission for the ICC on 30 June 2000. The finalized draft Elements and subsequently the adopted Elements will be set out in regulations made by the Secretary of State.
88.Subsection (4) provides that any relevant reservations or declarations made by the UK when ratifying any treaty or agreement relevant to the interpretation of Articles 6, 7 or 8 shall be used by the courts to interpret those Articles. Such reservations or declarations will be set out in Orders in Council. This provision follows the precedent of section 7(3) of the Geneva Conventions Act 1957 as amended by the Geneva Conventions (Amendment) Act 1995. Statements made on ratification of Additional Protocol I to the Geneva Conventions are examples of declarations coming within this section.
89.Subsection (5) provides that in trying offences, domestic courts must take into account any relevant jurisprudence or decision of the ICC and may also take into account any relevant international jurisprudence. The latter would include any relevant jurisprudence of the International Criminal Tribunals and the International Court of Justice.