|March 23, 1999
|April 6, 1999
|Sept. 10, 2002
|Feb. 6, 2003
Trinidad and Tobago signed the Rome Statute on 23 March 1999 and ratified on 6 April 1999, becoming the 2nd State Party to the International Criminal Court, after Senegal. Its timely ratification of the Statute reflects Trinidad and Tobago’s continued support for the establishment of the ICC throughout the negotiations. Trinidad and Tobago had reintroduced the political initiative to establish such a body during the 44th session of the United Nations General Assembly in 1989; provided the ICC with one of its first judges in Judge Hudson-Phillips, elected to the ICC in 2003; publicly rejected a bilateral immunity agreement offered by the United States, thereby consolidating its status as a firm sponsor of the ICC; and signed the Agreement on Privileges and Immunities in 2003.
Trinidad and Tobago became the first country in the Caribbean to fulfil its implementing obligations under the Rome Statute, by enacting the International Criminal Court Act in February 2006. The Act is a single, comprehensive piece of legislation fulfilling Trinidad and Tobago’s obligations under the Rome Statute, by making provision for the punishment of international crimes in domestic courts and enabling cooperation with the ICC. The provisions on genocide and crimes against humanity in the Rome Statute are imported verbatim into the Act, whilst the provisions concerning the actus reus of war crimes are cited as being applicable. This results in the direct incorporation of the crimes contained in the Rome Statute into Trinidad and Tobago law. However, some inconsistencies exist between the ICC Act 2006 and the Rome Statute. Assisting in the commission of crimes is not dealt with consistently: whilst agreeing or conspiring to commit genocide is criminalised, the same is not true of crimes against humanity or war crimes, whilst other forms of accessorial liability contained in the Rome Statute are not mentioned. Additionally, incitement to commit genocide is not incorporated into the Act. The ICC Act 2006 makes no reference to the crime of aggression or to international drug trafficking, the omission of the latter being significant due to the fact that Trinidad and Tobago has consistently lobbied for its inclusion in the Rome Statute.
The Act utilises universal jurisdiction as its jurisdictional base, thereby exceeding the requirements of the Rome Statute. Jurisdiction may be invoked regardless of the territory on which the act was committed, the nationality of the offender or the location of the offender at the time of indictment. This sweeping jurisdiction is, however, limited insofar as the ICC Act 2006 grants domestic courts with jurisdiction in relation to genocide, war crimes, and the offence of fabricating evidence before the ICC, but not in relation to crimes against humanity. This may be the result of a drafting error that has resulted in universal jurisdiction being applicable to the fabrication of evidence rather than crimes against humanity.
The ICC Act 2006 provides that crimes cannot be prosecuted retroactively, making 2006 the default cut-off point for retrospective prosecution. Notably, however, genocide and crimes against humanity were already criminalised prior to the coming into effect of the ICC Act 2006, meaning that they may be prosecuted if the act occurred on or after 31st January 1977 or 1st January 1991 respectively. In retrospective cases, the penalty applicable is the penalty that would have been in effect at the time of the criminal act (if less severe than the present penalty). The ICC Act 2006 states that crimes which involve the wilful killing of a person are punishable by “the same as the penalty for murder”. Given that murder is presently a capital offence in Trinidad and Tobago, the Act leaves open the possibility of the death penalty being administered for certain offences, if tried and punished under domestically. Similarly, the penalties applicable for offences against the administration of justice are subject to more severe sentences than envisaged in the Rome Statute, the maximum being 14 years.
The cooperation regime laid out in the ICC Act 2006 largely mirrors the provisions of the Rome Statute, although there are some inconsistencies in relation to competing requests. Articles 63(1) and (2) of the Act create a contradictory situation whereby if a competing request is received from a non-State party regarding the same conduct, “priority must be given to the ICC if Trinidad and Tobago is under an international obligation to extradite the person to the requesting state”, whilst conversely, a “request for extradition may continue to be dealt with if Trinidad and Tobago is not under an international obligation to extradite”. These provisions run counter to the Rome Statute and to other provisions of the ICC Act 2006. The confusion is possibly the result of a drafting error. The ICC Act 2006 also reserves a broad domestic competence regarding offences against the administration of justice, reserving the right of national authorities not to surrender persons or comply with cooperation requests where it would be “unjust or oppressive” to do so.
|The International Criminal Court Act 2006