Temporary transfer of persons in custody for purposes of identification or for obtaining testimony or other forms of assistance - national procedures for ICC proceedings


International Criminal Court Act 2007, No.26


28. Requests for assistance -

A request for assistance is a request made by the ICC to the Minister, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, in relation to a crime within the jurisdiction of the ICC, for:

(a) assistance in respect of any one or more of the following, namely –

(vii) the temporary transfer of prisoners;


65. Assistance in facilitating temporary transfer of prisoner -

Where the ICC requests assistance in facilitating the temporary transfer to the ICC of a prisoner serving a sentence in Samoa for an offence against the law of that country, the Minister shall give authority for the request to proceed and transmit the request to the Attorney General, if the Minister has reasonable grounds to believe that the prisoner’s assistance is sought for the purpose of identification or obtaining evidence or other assistance.

66. Consent required and assurances may be sought -

Where the Minister authorises and transmits a request under section 65, the Attorney General shall make such inquiries as may be necessary to ascertain whether the prisoner will consent to the transfer.

67. Minister may arrange for transfer -

(1) The Minister may authorise the temporary transfer of a prisoner serving a sentence in Samoa to the ICC if the Minister is satisfied that -

(a) the prisoner has consented to giving the evidence or other assistance requested; and
(b) the ICC has given any assurances requested by the Minister including but not limited to an assurance that the prisoner will not be released without prior approval of the Minister.

(2) Where the Minister authorises the temporary transfer of the prisoner serving a sentence in Samoa to the ICC, the Minister may -

(a) direct that the prisoner be released from the prison in which that prisoner is detained, for the purpose of the transfer to the ICC; and
(b) make arrangements for the prisoner to travel to the ICC in the custody of a person authorised for the purpose by the ICC.

(3) A direction given by the Minister under subsection (2) in respect of a prisoner is sufficient authority for the release of the prisoner from the prison in which the prisoner is detained, for the purposes of the transfer.

(4) Every person released under a direction given under subsection (2) shall be treated, for the purposes of the law in force relating to escape from lawful custody and for that purpose only, as continuing to be in the legal custody of the officer in charge of a prison from which the person is so released, while in Samoa during the period of that release.

(5) Where there is any inconsistency between subsection (4) and any other law, subsection (4) shall prevail.

68. Effect of transfer on prisoner’s sentence -

Where a prisoner who is serving a sentence for an offence committed in Samoa is transferred to the ICC -

(a) the prisoner shall be treated, while in custody outside Samoa in connection with the request, as being in custody for the purposes of the sentence imposed for the offence committed in Samoa which shall continue to run; and
(b) the Minister -
(i) may at any time notify the ICC that the prisoner is no longer required to be kept in custody; and
(ii) shall notify the ICC if the prisoner is no longer liable to be detained in a prison in Samoa.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(f) The temporary transfer of persons as provided in paragraph 7;


(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:

(i) The person freely gives his or her informed consent to the transfer; and

(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.

(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.