Competing request - same conduct - State not Party - no international obligation - pending admissibility decision

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

(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.

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

(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.

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

(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.

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

41 Notification of decision on extradition to foreign country

If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney-General subsequently refuses to extradite the person to the foreign country under the Extradition Act 1988, the Attorney-General must notify the ICC of the refusal.

The obligation in this section is in addition to the requirement of section 14 for the Attorney-General to respond formally to the request from the ICC.

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

(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.

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.