PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
28.
Consultation—
(1)The Attorney-General or the Minister, as the case may be, must consult with the ICC, without delay, if—
(a)a request for assistance is received from the ICC that does not contain or is not accompanied by the appropriate information or the appropriate documents specified in articles 87, 91, 92, 93, or 96 of the Statute; or
(b)the ICC has not provided sufficient information for a request for assistance to be executed; or
(c)in the case of a request for surrender,—
(i)the person sought cannot be located in New Zealand; or
(ii)it appears that the person in New Zealand is clearly not the person named in the warrant or judgment, as the case may be; or
(d)execution of a request for assistance in its current form would require the breach of an existing treaty obligation to another State; or
(e)for any other reason there are or may be difficulties with the execution of a request for assistance received from the ICC.
(2)Before refusing any request for assistance, the Attorney-General or the Minister, as the case may be, must consult with the ICC to ascertain whether the assistance sought could be provided—
(a)subject to conditions; or
(b)at a later date or in an alternative manner.
(3)Without limiting the types of conditions under which assistance may be provided, the Attorney-General may agree to the transmission of documents or information to the Prosecutor on a confidential basis, on the condition that the Prosecutor will use them solely for the purpose of generating new evidence.
(4)If the Attorney-General transmits documents or information subject to the condition specified in subsection (3), the Attorney-General may subsequently consent to the disclosure of such documents or information for use as evidence under the provisions of Parts 5 and 6 of the Statute and in accordance with the Rules.
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Restrictions on surrender
57.
Previous proceedings against person sought—
(1)This section applies if the person whose surrender is sought alleges that—
(a)the case is one to which article 20(1) of the Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or
(b)the person has been tried by another court for conduct also proscribed under article 6, 7, or 8 of the Statute and the case is not one to which paragraphs (a) and (b) of article 20(3) of the Statute applies.
(2)If this section applies, the Minister must immediately consult with the ICC to determine if there has been a relevant ruling on admissibility under the Statute.
PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Other types of assistance
113.
Request for other types of assistance—
(4)If the Attorney-General considers that the assistance sought cannot lawfully be provided, the Attorney-General must, before refusing the request, and in accordance with article 93(5) of the Statute,—
(a)consult with the ICC:
(b)consider whether the assistance can be provided subject to conditions or whether it can be provided at a later date or in an alternative manner.
Cf 1995 No 27 s 56; Statute, article 93(1)(l), (2), and (5)
PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Restrictions on provision of assistance
116.
Procedure if execution of assistance precluded under New Zealand law—
If the execution of a particular measure of assistance specified in a request to which this Part applies is prohibited in New Zealand, despite any other provision in this Part, the Attorney-General must—
(b)promptly consult with the ICC in order to resolve the matter.
PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Restrictions on provision of assistance
119.
Competing requests—
(1)If the Attorney-General receives competing requests for assistance from the ICC and from another State to which New Zealand is under an obligation to respond, the Attorney-General must endeavour, after consultation with the ICC and the other State, to satisfy both requests.
(2)For the purposes of subsection (1), the Attorney-General may do either or both of the following:
(a)postpone the execution of either of the competing requests:
(b)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 competing requests must be resolved in accordance with article 90 of the Statute, and sections 61 to 65 apply with any necessary modifications.
Cf Statute, articles 90, 93(9)(a)
PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Miscellaneous
123.
Execution of request by Prosecutor—
(2)If the Attorney-General identifies difficulties with the execution of a request to which article 99(4)(b) of the Statute relates, the Attorney-General must, without delay, consult with the ICC in order to resolve the matter.
PART 7 - PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC
Person in transit
136.
Transit by person being surrendered or transferred to ICC—
(3)Before the transferee is transported through New Zealand under subsection (2), the ICC must first transmit a request for transit in accordance with article 87 of the Statute that contains the following information and documents:
(a)a description of the transferee:
(b)in the case of a person described in subsection (1)(a),—
(i)a brief statement of the facts of the case and their legal characterisation; and
(ii)a copy of the warrant for arrest and surrender:
(c)in the case of a person described in subsection (1)(b), such information as the Minister may request about the reasons for the temporary transfer.
PART 8 - PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION
National security
161.
Consultation with ICC required—
The Attorney-General must consult with the ICC and, if appropriate, the defence, in accordance with article 72(5) of the Statute.
Cf Statute, article 72(5)
PART 8 - PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION
National security
162.
Procedure where no resolution—
(2)The Attorney-General must use his or her best endeavours with a view to reaching a mutually satisfactory outcome if—
(a)the ICC determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused; and
(b)the issue of disclosure arises in the circumstances specified in section 158 or section 159 and the Attorney-General is of the opinion that New Zealand's national security interests would be prejudiced by disclosure; and
(c)the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte.
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.
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.
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.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
3. 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 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or
(c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.