Arrest

Commonwealth of Australia

Australia - ICC Act 2002 (2016)

Part 2—General provisions relating to requests by the ICC for cooperation

7 What constitutes a request for cooperation

(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for:

(a) assistance in connection with any one or more of the following:
(i) the arrest (including the provisional arrest), and surrender to the ICC, of a person in relation to whom the ICC has issued a warrant of arrest or a judgment of conviction;

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

Division 3—Arrest of persons

20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

(a) the Attorney General receives a request for arrest and surrender of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.

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

Division 3—Arrest of persons


20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

(a) the Attorney General receives a request for arrest and surrender of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.


21 Arrest following request for provisional arrest

(1) Subject to section 22, if:

(a) the Attorney General receives a request for provisional arrest of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(3) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.


22 Certificate by Attorney General

The Attorney General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.


23 Remand

(1) If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:

(a) give to the person under arrest a written notice that:
(i) specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and
(ii) describes the conduct that is alleged to constitute that crime; and
(b) bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.

(2) The magistrate must satisfy himself or herself whether:

(a) the person is the person specified in the warrant; and
(b) the person was arrested in accordance with this Act; and
(c) section 131 has been complied with in respect of the arrest.

(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2), the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21.

(4) If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.

(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.

(6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:

(a) the gravity of the alleged crimes within the jurisdiction of the ICC;
(b) whether there are urgent and exceptional circumstances that favour the grant of bail;
(c) whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.

(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.


24 Procedure following application for bail

(1) If an application for bail is made, the Attorney General must notify the ICC.

(2) The Attorney General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.

(3) Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.

(4) If the person is granted bail, the Attorney General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.

(5) This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.


25 Release from remand on the Attorney General’s direction

(1) The Attorney General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:

(a) where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or
(b) in any case—after considering the matters mentioned in subsection 23(6), the Attorney General considers for any other reason that the remand should cease.

(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order.


26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

(a) the person was arrested under a warrant issued under subsection 21(2); and
(b) the person is, under this Division, on remand 60 days after the day on which the person was arrested; and
(c) a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

(a) order the release of the person from custody; or
(b) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:

(a) the person must be brought before a magistrate; and
(b) the magistrate must:
(i) order the release of the person from custody; or
(ii) order the discharge of the recognisances on which bail was granted to the person;
as the case requires.


27 Application for search warrants

(1) If:

(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

(a) a person is arrested under a warrant issued under section 20 or 21; and
(b) a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;
the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.

(3) For the purposes of this section, the applicable period is:

(a) if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116—48 hours; or
(b) otherwise—72 hours.

Note: Part 6 deals with search warrants.

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

Part 2—General provisions relating to requests by the ICC for cooperation

7 What constitutes a request for cooperation

(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for:

(a) assistance in connection with any one or more of the following:

the arrest (including the provisional arrest), and surrender to the ICC, of a person in relation to whom the ICC has issued a warrant of arrest or a judgment of conviction;

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 3—Arrest of persons

20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

the Attorney-General receives a request for arrest and surrender of a person; and
Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney-General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

21 Arrest following request for provisional arrest

(1) Subject to section 22, if:
the Attorney-General receives a request for provisional arrest of a person; and
Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney-General issues such a notice, a magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(3) After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

22 Certificate by Attorney-General

The Attorney-General must not issue a notice under section 20 or 21 after receipt of a request for the arrest and surrender, or for the provisional arrest, of a person for a crime unless the Attorney-General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.

23 Remand

(1) If a person is arrested under a warrant issued under section 20 or 21, the person executing the warrant must, as soon as practicable after the arrest:

(a)give to the person under arrest a written notice that:
specifies the crime within the jurisdiction of the ICC in respect of which the warrant was issued; and
describes the conduct that is alleged to constitute that crime; and

(b) bring the person under arrest before a magistrate in the State or Territory in which the arrest took place.

(2) The magistrate must satisfy himself or herself whether:

the person is the person specified in the warrant; and

the person was arrested in accordance with this Act; and
section 131 has been complied with in respect of the arrest.

(3) If the magistrate is not satisfied as to any one or more of the matters mentioned in subsection (2), the magistrate must order the release of the person from custody. However, the making of the order does not prevent the person from being arrested under a further warrant issued under section 20 or 21.

(4) If the magistrate is satisfied as to all the matters mentioned in subsection (2), the magistrate must remand the person in custody or on bail for such period or periods as may be necessary to enable the Attorney-General to issue a surrender warrant and, if a surrender warrant is issued, to enable the warrant to be executed.

(5) The magistrate must remand the person in custody unless there are special circumstances justifying remand on bail.

(6) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate must have regard to the following:

the gravity of the alleged crimes within the jurisdiction of the ICC;

whether there are urgent and exceptional circumstances that favour the grant of bail;

whether necessary safeguards exist to ensure that Australia can fulfil its duty under the Statute to surrender the person.

(7) Without limiting the other matters that may be taken into account in making a decision to grant bail, the magistrate may not consider whether any warrant of arrest issued by the ICC was properly issued in accordance with the Statute.

24 Procedure following application for bail

If an application for bail is made, the Attorney-General must notify the ICC.

The Attorney-General must give to the magistrate who is considering the application the recommendations made by the ICC in relation to the application.

Before giving a decision, the magistrate must consider the recommendations that the ICC has made, including any recommendations or measures to prevent the escape of the person.

If the person is granted bail, the Attorney-General must, if the ICC requests, provide periodic reports to the ICC on the person’s bail status.

This section applies with any necessary modifications to any application for bail made during the period until the person is surrendered or is released according to law.

25 Release from remand on the Attorney-General’s direction

(1) The Attorney-General must, by written notice in the statutory form, direct a magistrate to order the release from custody of a person remanded under this Division, or the discharge of the recognisances on which bail was granted to the person, as the case requires, if:

where the person was remanded following the receipt of a request for provisional arrest—a request for surrender of the person has not been duly received within 60 days after the day on which the person was arrested and the person does not consent to surrender; or

in any case—after considering the matters mentioned in subsection 23(6), the Attorney-General considers for any other reason that the remand should cease.

(2) The making by a magistrate of an order under subsection (1) following a direction by the Attorney-General does not prevent the person from being arrested and remanded pursuant to a further request for arrest and surrender of the person received after the making of the order .

26 Release from remand after certain periods

(1) A person must be brought before a magistrate if:

the person was arrested under a warrant issued under subsection 21(2); and

the person is, under this Division, on remand 60 days after the day on which the person was arrested; and

a notice has not been given under subsection 20(1) in relation to the person.

(2) Unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;
as the case requires.

(3) If a magistrate was satisfied under subsection (2) that such a notice was likely to be given in relation to the person within a particular period but the notice is not given within the period:
the person must be brought before a magistrate; and the magistrate must:

order the release of the person from custody; or

order the discharge of the recognisances on which bail was granted to the person;

as the case requires .

27 Application for search warrants

(1) If:
a person is arrested under a warrant issued under section 20 or 21; and

a police officer has reasonable grounds for suspecting that evidential material relating to a crime within

the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, at any premises;

the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the premises to search for that material.

(2) If:

a person is arrested under a warrant issued under section 20 or 21; and

a police officer has reasonable grounds for suspecting that evidential material relating to a crime within the jurisdiction of the ICC in respect of which the warrant was issued is, or within the applicable period referred to in subsection (3) of this section will be, in a person’s possession;

the police officer may, by an information on oath that sets out the grounds for the suspicion, apply for a search warrant in relation to the person to search for the material.

(3) For the purposes of this section, the applicable period is:

if the application for the warrant is made by telephone, telex, fax or other electronic means, as provided by section 116- 48 hours; or

otherwise-72 hours.

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

42 Detention following surrender warrants

If the Attorney-General issues a surrender warrant in relation to a person who is on bail, the person must be brought as soon as practicable before a magistrate in the State or Territory in which the person is on remand.

The magistrate must remand the person in custody for such period or periods as may be necessary to enable the warrant to be executed.

43 Content of surrender warrants

(1) A surrender warrant in relation to the person (the relevant person) must:

(a) require the person in whose custody the relevant person is being held to release the relevant person into the custody of a police officer; and

(b) authorise the police officer to transport the relevant person in custody, and, if necessary or convenient, to detain the relevant person in custody, for the purpose of enabling the relevant person:

to be placed in the custody of a specified person who is an officer of the ICC or other person authorised by the ICC; and

to be transported to a place specified by the ICC; and

(c) authorise the specified person to transport the relevant person in custody to a place specified by the ICC for the purpose of surrendering the relevant person to a person appointed by the ICC to receive the person.

(2) A place referred to in paragraph (1)(b) or (c) may be a place in or outside Australia.

44 Execution of surrender warrants

Subject to this Division, a surrender warrant must be executed according to its terms.

45 Release from remand

(1) If:

a surrender warrant has been issued in relation to a person; and

the person is in custody in Australia under the warrant, or otherwise under this Act, more than 21 days after the day on which the warrant was first liable to be executed; and

the person applies to the Supreme Court of the State or Territory in which the person is in custody; and

reasonable notice of the intention to apply has been given to the Attorney-General;

the Court must, subject to subsection (2), order that the person be released from that custody .

(2) However, if the Court is satisfied that the surrender warrant has not been executed within the period of 21 days, or since the person last made an application under subsection (1), as the case may be:

because to do so would have endangered the person’s life, or would have prejudiced the person’s health; or

for any other reasonable cause;

the Court must not order that the person be released from custody.

46 Effect of surrender to ICC on person’s terms of imprisonment

(1) If, at the time when a person was surrendered in connection with a crime within the jurisdiction of the ICC, the person was serving a sentence of imprisonment in respect of an offence against a law of the Commonwealth or of a Territory, or was otherwise subject to detention under a law of the Commonwealth or of a Territory:

(a) any period spent by the person in custody in connection with the surrender warrant; and

(b) subject to subsection (2), any period spent by the person in custody in connection with detention by, or on the order of, the ICC in respect of the crime;

are to be counted as periods served towards the sentence of imprisonment or period of detention.

If the person is convicted of the crime within the jurisdiction of the ICC, the period spent by the person in custody serving a sentence of imprisonment imposed by the ICC for the crime is not to be counted as a period towards the sentence of imprisonment or period of detention referred to in subsection (1).

A reference in this section to a period spent in custody includes a reference to a period spent in custody outside Australia.

47 Expiry of Australian sentences while under ICC detention

If:

at the time when a person was surrendered, the person was serving a sentence of imprisonment in respect of an offence against an Australian law, or was otherwise subject to detention under an Australian law; and

each such sentence of imprisonment that the person was serving, or each such period of detention to which the person was subject, at that time expires while the person is being detained by, or on the order of, the ICC;

the Attorney-General must without delay inform the ICC of the expiry.

48 Waiver of rule of speciality

If the ICC requests Australia under paragraph 2 of article 101 of the Statute to waive the requirements of paragraph 1 of that article in respect of a person surrendered by Australia, the Attorney-General may waive the requirements accordingly.

Before deciding whether to waive the requirements, the Attorney-General may request the ICC to provide additional information in accordance with article 91 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 6—Search, seizure and powers of arrest

Division 4—Arrest and related matters

129 Power to enter premises to arrest person

(1) Subject to subsection (2), if:
a police officer has, under this Act or pursuant to a warrant issued under this Act, power to arrest a person; and

the police officer believes on reasonable grounds that the person is on any premises;

the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.

(2) A police officer must not enter a dwelling house under subsection (1) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:

it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or

it is necessary to do so in order to prevent the concealment, loss or destruction of evidential material.

(3) In subsection (2):

dwelling house includes a conveyance, and a room in a hotel, motel, boarding house, or club, in which people ordinarily retire for the night.

130 Use of force in making arrest

A person must not, in the course of arresting another person under this Act or pursuant to a warrant issued under this Act, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.

Without limiting the operation of subsection (1), a police officer must not, in the course of arresting a person under this Act or pursuant to a warrant issued under this Act:

do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); or

if the person is attempting to escape arrest by fleeing—do such a thing unless:

the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); and

the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.

131 Persons to be informed of grounds of arrest

A person who arrests another person under this Act or pursuant to a warrant issued under this Act must inform the other person, at the time of the arrest, of the crime in respect of which, or, if the other person is arrested under section 182, the reason for which, the other person is being arrested.

It is sufficient if the other person is informed of the substance of the crime or reason, and it is not necessary that this be done in language of a precise or technical nature.

Subsection (1) does not apply to the arrest of the other person if:

the other person should, in the circumstances, know the substance of the crime in respect of which, or the reason for which, he or she is being arrested; or

the other person’s actions make it impracticable for the person making the arrest to inform the other person of the crime in respect of which, or the reason for which, he or she is being arrested.

132 Power to conduct a frisk search of an arrested person

A police officer who arrests a person under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:

conduct a frisk search of the person at or soon after the time of arrest; and

seize any seizable items found as a result of the search.

133 Power to conduct an ordinary search of an arrested person

A police officer who arrests a person under this Act or pursuant to a warrant issued under
this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that the person is carrying:

evidential material relating to the crime to which the person’s custody relates; or
a seizable item;

conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.

134 Power to conduct search of arrested person’s premises

A police officer who arrests a person at premises under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may seize things in plain view at those premises that the police officer believes on reasonable grounds to be:

evidential material relating to the crime to which the person’s custody relates; or
seizable items.

135 Power to conduct an ordinary search or strip search

(1) If a person who has been arrested under this Act or pursuant to a warrant issued under this
Act is brought to a police station, a police officer may:

if an ordinary search of the person has not been conducted—conduct an ordinary search of the person; or

subject to this section, conduct a strip search of the person.

(2) A strip search may be conducted if:

(a) a police officer suspects on reasonable grounds that:

the person has in his or her possession evidential material relating to the crime to which the person’s custody relates; or

the person has in his or her possession a seizable item; or

a visual inspection of the person’s body will provide evidence of the person’s involvement in that crime; and

the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that thing or to discover that evidence; and

a police officer of the rank of superintendent or higher has approved the conduct of the search.

Subject to section 136, a strip search may also be conducted if the person consents in writing.

Subject to section 136, a strip search may be conducted in the presence of a medical practitioner, who may assist in the search.

The approval may be obtained by telephone, telex, fax or other electronic means.

A police officer who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.

Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).

Any item of a kind referred to in subparagraph (2)(a)(i) or (ii) that is found during a strip search may be seized.

136 Rules for conduct of strip search

(1) A strip search:

must be conducted in a private area; and

must be conducted by a police officer who is of the same sex as the person being searched; and

subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and

(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and

(e) must not be conducted on a person who is under 10 years of age; and

(f) if the person being searched is at least 10 but under 18 years of age, or is incapable of managing his or her affairs:

may only be conducted if a court orders that it be conducted; and

must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and, as far as is practicable in the circumstances, is acceptable to the person; and

(g) must not involve a search of a person’s body cavities; and

(h) must not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the crime to which the person’s custody relates; and

(i) must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to establish the person’s involvement in the crime to which the person’s custody relates.

(2) In deciding whether to make an order referred to in paragraph (1)(f), the court must have regard to:

the serious nature of the crime to which the person’s custody relates; and

the age or any disability of the person; and

such other matters as the court thinks fit.

(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.

Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.

If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.

Rome Statute

Article 87 Requests for cooperation: general provisions

1.

(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.

(b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.

2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence.

3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.

4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.

5.

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.

7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

Article 88 Availability of procedures under national law

States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.

Article 89 Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

3.

(a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.

(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:

(i) A description of the person being transported;

(ii) A brief statement of the facts of the case and their legal characterization; and

(iii) The warrant for arrest and surrender;

(c) A person being transported shall be detained in custody during the period of transit;

(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;

(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.

4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Article 90 Competing requests

1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.

2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.

3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.

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.

5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.

6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where 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 Court and the requesting State.

7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender:

(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;

(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.

Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.

Article 91 Contents of request for arrest and surrender

1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).

2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A copy of the warrant of arrest; and

(c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.

3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by:

(a) A copy of any warrant of arrest for that person;

(b) A copy of the judgement of conviction;

(c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and

(d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served.

4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.

Article 92 Provisional arrest

1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.

2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;

(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

(d) A statement that a request for surrender of the person sought will follow.

3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.

4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.