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Notes
1 See discussion under Part XXVI of the Report on Sovereign Immunity and Clause 47 of the drafting instructions.
2 See discussion in the Report of offences and penalties for core crimes in Part II on Core Crimes—Substance and Part IV on Core Crimes—Penalties and Clauses 1 and 3 of the drafting instructions.
3 The intention of subparagraph 2 of this section and sections 6 and 7 is to incorporate the crime definitions by reference to the Statute. If there are concerns about the sufficiency of incorporation by reference, the text of the Statute definitions can be replicated in the legislation.
4 In respect of the optional alternative offence provisions in sections 5, 6 and 7 see discussion in paragraph 7 of the Report on adopting a ‘living’ definition.
5 See discussion of implementing other international obligations in paragraph 7 of the Report.
6 See discussion of interpretive provisions under Part XIII of the Report on General Interpretative Provisions.
7 See discussion of applicable law for defences under paragraphs 63–67 of the Report and Clauses 17 and 18 of the drafting instructions.
8 See discussion of superior orders under paragraphs 69–71 of the Report and Clause 19 of the drafting instructions.
9 See discussion of command responsibility under paragraphs 56–58 of the Report and Clause 15 of the drafting instructions.
10 See discussion of ne bis in idem in paragraphs 47–49 of the Report and Clause 13 of the drafting instructions.
11 See discussion on mental element in paragraphs 60–62 of the Report and Clause 16 of the drafting instructions.
12 See discussion under Part III of the Report on Core Crimes—Temporal Jurisdiction and Clause 2 of the drafting instructions. In some states treaties are self‐implementing and become part of domestic law upon ratification. For those states it may be that no provision on temporal jurisdiction may be needed for the offence provisions if it is considered that the offences under the Rome Statute become offences under domestic law with ratification taking effect at that time. However given that the Rome Statute does not mandate the adoption of the offences under domestic law consideration needs to be given to whether additional legislation may be needed to create offences in those states even though treaties are generally self implementing.
13 See discussion under Part V of the Report on Core Crimes—Jurisdiction to Prosecute and Clause 4 of the drafting instructions.
14 See discussion under Part V of the Report on Consent to Prosecution and Clause 5 of the drafting instructions.
15 See discussion under Part VII of the Report on Article 70—Administration of Justice Offences and Clause 6 of the drafting instructions.
16 See discussion under Part VIII of the Report on Jurisdiction for the Administration of Justice Offences and Clause 7 of the drafting instructions.
17 See discussion under Part X of the Report on Consent to Prosecution of Administration of Justice Offences and Clause 9 of the drafting instructions.
18 With reference to 16A and 16B see discussion under Part XI of the Report on Ancillary Offences for the Administration of Justice Offences and Clause 10 of the drafting instructions.
19 See discussion in Part XII of the Report on Place of Trial and Relevant Court and Procedure and Clause 11 of the drafting instructions.
20 See discussion in Part XII of the Report on Place of Trial and Relevant Court and Procedure and Clause 11 of the drafting instructions.
21 See discussion in paragraphs 73, 74 and 75 of the Report on general provisions for requests for assistance and Clause 21 of the drafting instructions.
22 See comments on jurisdiction regarding the cooperation regime in paragraph 72 of the Report and Clause 20 of the drafting instructions.
23 See discussion on execution of requests in paragraph 106 of the Report and Clause 33 of the drafting instructions.
24 See discussion under Part XXV of the Report on Conflicting Obligations under International Law (Article 98) and Clause 46 of the drafting instructions.
25 See generally Part XVI of the Report on Arrest and Surrender.
26 See discussion of grounds of refusal in paragraphs 96 and 97 of the Report and Clause 28 of the drafting instructions.
27 See discussion on postponement of execution of requests in paragraph 95 of the Report and Clause 27 of the drafting instructions.
28 See discussion of competing requests in paragraphs 91 and 92 of the Report and Clause 24 of the drafting instructions.
29 See discussion under Part XXVI of the Report on Sovereign Immunity and Clause 47 of the drafting instructions.
30 See general discussion of provisional arrest in paragraphs 78 and 79 of the Report.
31 See discussion of rights upon arrest in paragraphs 78 and 79 of the Report.
32 See discussion on interim release in paragraphs 80 and 81 of the Report.
33 See discussion of evidence and structure for surrender procedure in paragraphs 83–86 of the Report.
34 If the general law of the country does not provide for habeas corpus as an automatic right, a statutory provision giving the person a right to make such an application should be included. (See paragraph 88 of the Report.)
35 See discussion on guidance on the role of the judge in the surrender proceedings in paragraph 90 of the Report and Clause 23 of the drafting instructions.
36 See discussion of Guidance on the Role of the Judge in Surrender Proceedings in paragraph 90 of the Report and Clause 23 of the drafting instructions.
37 See discussion on appeals in paragraphs 87–89 of the Report and Clause 22 of the drafting instructions.
38 See discussion on temporary surrender in paragraph 93 of the Report and Clause 25 of the drafting instructions.
39 See discussion on transit in paragraph 94 of the Report and Clause 26 of the drafting instructions.
40 See discussion of the rule of specialty and Article 101 of the Statute in paragraph 98 of the Report and Clause 29 of the drafting instructions.
41 See general discussion of other forms of cooperation in paragraphs 99–101 of the Report and Clause 30 of the drafting instructions.
42 For sections 57–60 see discussion on temporary transfer of witnesses in paragraph 105 of the Report and Clause 32 of the drafting instructions.
43 See discussion in paragraph 101 of the Report on use of domestic powers and Clause 30 of the drafting instructions.
44 See discussion on protection of victims and witnesses in paragraphs 102–104 of the Report and Clause 31 of the drafting instructions.
45 See discussion of grounds of refusal in paragraphs 110 and 111 of the Report and Clause 36 of the drafting instructions.
46 See discussion of postponement of execution of requests in paragraph 109 of the Report and Clause 35 of the drafting instructions.
47 See discussion of authentication of documents in paragraphs 162 and 163 of the Report and Clause 48 of the drafting instructions.
48 See discussion of certificates in paragraphs 162 and 163 of the Report and Clause 48 of the drafting instructions.
49 See discussion under Part XIX of the Report on Assistance by the Court and Clause 37 of the drafting instructions.
50 See general discussion under Part XX of the Report on the Enforcement of Sentences and Clause 38 of the drafting instructions.
51 See discussion of general powers in enforcement in paragraph 120 of the Report.
52 See discussion on non‐modification of sentence in paragraph 121 of the Report.
53 See discussion of transfers in paragraph 124 of the Report.
54 See discussion of transfers in paragraph 124 of the Report.
55 See discussion on situation after service of sentence in paragraph 123 of the Report.
56 See discussion on protections from other proceedings in paragraph 125 of the Report.
57 See discussion on enforcement of fines in paragraph 127 of the Report and Clause 39 of the drafting instructions.
58 See discussion of forfeiture orders in paragraph 131 of the Report and Clause 41 of the drafting instructions.
59 See discussion of reparations in paragraphs 132–134 of the Report and Clause 42 of the drafting instructions.
60 See discussion on freezing/restraint of assets in paragraphs 128–130 of the Report and Clause 40 of the drafting instructions.
61 See discussion under Part XXIV on National Security and Clause 45 of the drafting instructions.
62 See discussion under Part XXIII on ICC Sittings and Clause 43 of the drafting instructions.
63 See discussion on direct execution by the Prosecutor in paragraphs 107 and 108 of the Report and Clause 34 of the drafting instructions.
64 See discussion under Part XXIII on Privileges and Immunities for Court Officials and Other Relevant Persons and Clause 44 of the drafting instructions.
65 See discussion on option of restricting application of certain immunities in paragraph 142 of the Report and Clause 44 of the drafting instructions.
66 See discussion of regulatory power in paragraphs 162 and 163 of the Report and Clause 48 of the drafting instructions.