Competing request - same conduct - State not Party

Commonwealth of Australia

Australia - ICC Act 2002 (2016)

Part 3—Requests by the ICC for arrest and surrender of persons

Division 4—Surrender of persons


39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

(a) section 37 applies; and
(b) the foreign country is not a party to the Statute.

(2) Priority must be given to the request for surrender if:

(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(3) The request for extradition by the foreign country may continue to be dealt with if:

(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.

(4) Despite subsection (3), no person may be extradited under the Extradition Act 1988 pursuant to the request for extradition unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

(5) Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.

(6) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney General must determine whether to surrender the person or to extradite the person to the foreign country.

(7) In making the determination under subsection (6), the Attorney General must consider all relevant matters, including, but not limited to:

(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
(c) the possibility of subsequent surrender between the ICC and the foreign country.

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


51 Refusal of assistance

(2) The Attorney General may refuse a request for cooperation:

(b) if there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 59(4) applies; or

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

(a) section 57 applies; and
(b) the foreign country is not a party to the Statute.

(2) Priority must be given to the request for cooperation if:

(a) Australia is not under an international obligation to comply with the request from the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(3) The request from the foreign country may continue to be dealt with if:

(a) Australia is not under an international obligation to comply with the request; and
(b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.

(4) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

(5) In making a determination under subsection (4), the Attorney General must consider all relevant matters, including, but not limited to:

(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if relevant, whether the crime to which the request from that country relates was committed in its territory and the nationality of the victims and of the person who is alleged to have engaged in the conduct forming the basis of that crime.

31 Refusal of surrender

(2) The Attorney-General may refuse a request for surrender of a person if:

there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 39(6) applies;

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 3 Requests by the ICC for arrest and surrender of persons

Division 4—Surrender of persons

31 Refusal of surrender

(2) The Attorney-General may refuse a request for surrender of a person if:

there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 39(6) applies;

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 3 Requests by the ICC for arrest and surrender of persons

Division 4—Surrender of persons

35 Person being investigated or prosecuted in Australia for same conduct

(1) This section applies if:

(d) a challenge to the admissibility of the case is being or has been made to the ICC under paragraph 2(b) of article 19 of the Statute.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 3 Requests by the ICC for arrest and surrender of persons

Division 4—Surrender of persons

39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

section 37 applies; and

the foreign country is not a party to the Statute.

(2) Priority must be given to the request for surrender if:
Australia is not under an international obligation to extradite the person to the foreign country; and
the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(3) The request for extradition by the foreign country may continue to be dealt with if:
Australia is not under an international obligation to extradite the person to the foreign country; and
the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.

(4) Despite subsection (3), no person may be extradited under the Extradition Act 1988 pursuant to the request for extradition unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.

If Australia is under an international obligation to extradite the person to the foreign country, the Attorney-General must determine whether to surrender the person or to extradite the person to the foreign country.

In making the determination under subsection (6), the Attorney-General must consider all relevant matters, including, but not limited to:

the respective dates of the requests; and

the interests of the foreign country, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

the possibility of subsequent surrender between the ICC and the foreign country.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 4 Other requests by ICC

Division 3—Restrictions on provision of assistance

51 Refusal of assistance

The Attorney-General may refuse a request for cooperation:

if there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 59(4) applies; or

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 4 Other requests by ICC

Division 3—Restrictions on provision of assistance

51 Refusal of assistance

The Attorney-General may refuse a request for cooperation:

if there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 59(4) applies; or

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 4 Other requests by ICC

Division 3—Restrictions on provision of assistance

56 Competing requests

(1) If a request for cooperation is made and a foreign country makes a request for assistance to which Australia is under an international obligation to respond, the Attorney-General must, after consultation with the ICC and that country, try to comply with both requests.

(2) For the purposes of subsection (1), the Attorney-General may do either or both of the following:

postpone the execution of either of the requests;

attach conditions to the provision of assistance under either or both of the requests.

(3) If it is not possible to resolve the issue by consultation, the method of dealing with the requests must be resolved in accordance with sections 57 to 61.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 4 Other requests by ICC

Division 3—Restrictions on provision of assistance

59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

section 57 applies; and

the foreign country is not a party to the Statute.

(2) Priority must be given to the request for cooperation if:

Australia is not under an international obligation to comply with the request from the foreign country; and

the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(3) The request from the foreign country may continue to be dealt with if:
Australia is not under an international obligation to comply with the request; and
the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.

(4) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney-General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

(5) In making a determination under subsection (4), the Attorney-General must consider all relevant matters, including, but not limited to:

the respective dates of the requests; and

the interests of the foreign country, including, if relevant, whether the crime to which the request from that country relates was committed in its territory and the nationality of the victims and of the person who is alleged to have engaged in the conduct forming the basis of that crime.

Rome Statute

Article 90 Competing requests

4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.