y and where they are committed by a national, no matter where that national has committed the offence.
The Statute is silent as to the maximum or minimum penalty that a State can impose when it is prosecuting such offences. However, these offences strike at the very heart of any justice system, by potentially undermining its legitimacy and credibility. Therefore, a maximum penalty of no less than 5 years for all of those offences is a good guide, as per article 70 (3). States may also wish to provide for different penalties for different types of offences, depending upon their seriousness.
States may also wish to go beyond the requirements of article 70, by providing for further variations of the offences listed in that article, and by assigning different penalties to different offences, sometimes greater than 5 years imprisonment. This has the benefit of deterring a greater variety of potential attacks on the integrity of the ICC justice system.
(ii) Extend existing legislation relating to offences against the administration of justice of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY/R), to include the ICC
Some States Parties may have already created offences against the administration of justice for these two Tribunals, in accordance with their respective Rules of Procedure and Evidence. For example, Rules 77 & 91 of the Rules of Procedure and Evidence for the ICTY are "Contempt of the Tribunal" and "False Testimony under Solemn Declaration", respectively. Note that there are several differences between those Rules and Article 70 of the Rome Statute, most notably the maximum penalty for offences. For example, the ICTY Rules differentiate between various types of offences, and provide that some offences only have a maximum penalty of 12 months imprisonment (Rule 77 (h)(i)), while other offences have a maximum penalty of 7 years imprisonment (Rule 77(h)(ii)). In implementing article 70 offences, States can set higher maximum penalties if they wish.
States should ensure that they have provided for all of the offences listed under article 70 (1), not just those in the ICTY/R Rules, because those Rules do not provide for certain article 70 offences, such as retaliating against officials of the tribunal (article 70 (1)(e)).
(iii) Create a new piece of legislation
Alternatively, States could create article 70 offences either by a specific piece of legislation on offences against the administration of justice, or by including such offences within a broader ICC-specific piece of legislation, as the Canadian government has proposed in its Bill C-19, Crimes Against Humanity Act. Sections of this Bill propose to create new offences in Canada and for Canadian citizens, in accordance with the Rome Statute.
b) Giving national courts jurisdiction over article 70 offences
States Parties must also enable their own courts to prosecute these offences (article 70 (4)(b)). This can be done by adding "offences against the administration of ICC justice", or similar terminology, to the list of offences over which the relevant courts are to have jurisdiction. All personnel involved in criminal investigations need to be granted the jurisdiction to investigate and prosecute such crimes as well. Note that the ICC will have to grant a waiver of immunity if State courts wish to prosecute ICC personnel.
c) Providing sufficient resources to enable national prosecutions to be treated diligently and conducted effectively
Article 70 (4)(b) specifically provides that a State Party "shall submit" any cases under this article to its competent authorities, once requested by the Court to do so. It also provides that "those authorities shall treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively." Clearly the drafters of the Statute envisaged that these types of offences sh
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