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Home EJIL Analysis Commonwealth Revises its Model Law on the International Criminal Court

Commonwealth Revises its Model Law on the International Criminal Court

Published on July 28, 2011        Author: 

The Commonwealth has recently revised and updated its Model Law on the Implementation of the Rome Statute of the International Criminal Court.  The Commonwealth is an organization of 54 States that were, in the main, formerly part of the British empire. 35 of those States are parties to the Rome Statute. The Model Law provides a template that Commonwealth member States may use (and have used) in drafting their own national ICC Statutes.The Revised Model Law of 2011, updates the Commonwealth Model Law of 2004. The revision was called for by a high level expert meeting held in October 2010 (chaired by Akbhar Khan, Commonwealth Legal Director) in order to take account of the experience since the Rome Statute came into force. An expert group, consisting of representatives from States and civil Society was set up to undertake the revision. This group was chaired by Professor Charles Garraway and I had the pleasure and honour of taking part in the group. The revised Model Law and the report of the Group were adopted on July 14 by the Commonwealth Law Ministers meeting in Sydney Australia. The full text of the revised Model Law can be found here on the website of the Commonwealth Secretariat.

A summary of the key revisions can be see in the Chair’s Report to the Commonwealth Law Ministers. The group took account of developments in the Kampala Review Conference and

considered whether to include provisions on the crime of aggression in the Commonwealth model law at the present time. After considerable discussion, it was decided by the majority of the Group that further work is required and inclusion would be premature. It considered that the issue should be revisited before 2017.

One area where a change was made to the Model Law was the provision dealing with immunity. The Bashir and Gaddafi cases have highlighted the importance of clarifying the position on immunity in situations referred to the ICC by the Security Council. Section 25 of the previous Commonwealth Model Law stated that any immunity by reason of a connection with a State Party to the Rome Statute does not prevent domestic action taken in support of ICC proceedings (such as arrest and surrender to the ICC).  This provision is reflected in the domestic law of a number of commonwealth States (including the UK). However, this provision has now been extended in the revised Commonwealth Model Law, to exclude application of  immunity attaching by reason of a State with respect to which the United Nations Security Council has made a referral to the ICC or a State which, whilst not a State Party has accepted the jurisdiction of the ICC. That provision would now explicitly deal with the Bashir and Gaddafi cases.

In addition to the revised Model Law, the Commonwealth signed a Memorandum of Understanding with the International Criminal Court (see here and here).  The agreement is intended to enhance cooperation between the two organizations in particular in supporting domestic implemention of international criminal law.

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