Refusal of ICC request - competing request

Kenya

Kenya - International Crimes Act 2008 EN

PART I—PRELIMINARY

Offences Against Administration of Justice

19. (2) In addition to the grounds of refusal or postponement specified in Parts IV and V, a request for surrender or other assistance that relates to an offence involving the administration of justice may be refused if, in the opinion of the Minister or the Attorney-General, as the case may be, there are exceptional circumstances that would make it unjust or oppressive to surrender the person or give the assistance requested.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

51. (2) The Minister may refuse a request by the ICC for
the surrender of a person if—

(a) there are competing requests from the ICC and a
State that is not a party to the Rome Statute
relating to the same conduct and section 59 (4)
applies; or
(b) there are competing requests from the ICC and a
State that is not a party to the Rome Statute
relating to different conduct and section 60 (3) applies.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Restrictions on Provision of Assistance

109.
(2) The Attorney-General may refuse a request by the ICC to which this Part applies if—

(b) there are competing requests from the ICC and a
State that is not a party to the Rome Statute relating to the same conduct and section 59 (4) (as applied by section 114) applies;

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Restrictions on Provision of Assistance

109.

(2) The Attorney-General may refuse a request by the ICC to which this Part applies if—

(c) there are competing requests from the ICC and a State that is not a party to the Rome Statute relating to different conduct and section 60 (3) (as applied by section 114) applies.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Miscellaneous

116. At any time before a formal response is sent to the ICC, the Attorney-General may decide that a request by the ICC for assistance to which this Part applies will be refused or the execution of the request postponed, on a ground specified in section 109 or section 110, even if he has previously given authority for the request to proceed.

Rome Statute

Article 90 Competing requests

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.

Article 93 Other forms of cooperation

9.

(a)

(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.

(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.

(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.