Competing request

Australia

Australia - ICC Act 2002 (2016)

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

12 Request that may raise problems relating to Australia’s international obligations to a foreign country

(4) If, after the consultation, the Attorney General is not satisfied as mentioned in subsection (2), the Attorney General must postpone the execution of the request unless and until the foreign country has made the necessary waiver or given the necessary consent.

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

Division 4—Surrender of persons


37 Request from ICC and a foreign country relating to same conduct

If a request for surrender of a person is made and a foreign country requests the extradition of the person for the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney General:

(a) must notify the ICC and the foreign country of that fact; and
(b) must determine, in accordance with section 38 or 39, whether the person is to be surrendered or is to be extradited to the foreign country.


38 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute

(1) This section applies if:

(a) section 37 applies; and
(b) the foreign country is a party to the Statute.

(2) Priority must be given to the request from the ICC if:

(a) the ICC has, under article 18 or 19 of the Statute, 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 foreign country in respect of its request for extradition; or
(b) the ICC makes such a determination after receiving notification of the request for extradition from the foreign country.

(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:

(a) the steps required to be taken under the Extradition Act 1988 in relation to a request for extradition may continue to be taken; but
(b) no person may be extradited under that Act pursuant to the request unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.


39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

(a) section 37 applies; and
(b) the foreign country is not a party to the Statute.

(2) Priority must be given to the request for surrender if:

(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(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.

(5) Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.

(6) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney General must determine whether to surrender the person or to extradite the person to the foreign country.

(7) In making the determination under subsection (6), the Attorney General must consider all relevant matters, including, but not limited to:

(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if 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 ICC and the foreign country.


40 Request from ICC and foreign country relating to different conduct

(1) If a request for surrender of a person is made and a foreign country requests the extradition of the person for conduct other than the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney General must determine whether the person is to be surrendered or is to be extradited to the foreign country.

(2) If Australia is not under an international obligation to extradite the person to the foreign country, priority must be given to the request from the ICC.

(3) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney General must determine whether to surrender the person or to extradite the person to the foreign country.

(4) In making the determination under subsection (3), the Attorney General must consider all relevant matters, including, but not limited to, the matters specified in subsection 39(7), but must give special consideration to the relative nature and gravity of the conduct for which surrender and extradition are sought.


41 Notification of decision on extradition to foreign country

(1) 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.

(2) 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.

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


56 Competing requests

(1) If a request for cooperation is made and a foreign country makes a request for assistance to which Australia is under an international obligation to respond, the Attorney General must, after consultation with the ICC and that country, try to comply with 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 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 requests must be resolved in accordance with sections 57 to 61.


57 Request from ICC and a foreign country relating to same conduct

If a request for cooperation is made and a foreign country requests assistance from Australia in respect of a matter relating to the conduct that forms the basis of the crime to which the request for cooperation relates, the Attorney General:

(a) must notify the ICC and the foreign country of that fact; and
(b) must determine, in accordance with section 58 or 59, whether the request for cooperation or the request from the foreign country is to be complied with.


58 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute

(1) This section applies if:

(a) section 57 applies; and
(b) the foreign country is a party to the Statute.

(2) Priority must be given to the request for cooperation if:

(a) the ICC has, under article 18 or 19 of the Statute, made a determination that the case is admissible and that determination takes into account the investigation or prosecution conducted by the foreign country; or
(b) the ICC makes such a determination after receiving notification of the request from the foreign country.

(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:

(a) any preliminary steps required to be taken to give effect to the request from the foreign country may continue to be taken; but
(b) the request may not be complied with unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.


59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

(a) section 57 applies; and
(b) the foreign country is not a party to the Statute.

(2) Priority must be given to the request for cooperation if:

(a) Australia is not under an international obligation to comply with the request from the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(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.

(4) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

(5) In making a determination under subsection (4), the Attorney General must consider all relevant matters, including, but not limited to:

(a) the respective dates of the requests; and
(b) the interests of the foreign country, including, if relevant, whether the crime to which the request from that country relates was committed in its territory and the nationality of the victims and of the person who is alleged to have engaged in the conduct forming the basis of that crime.


60 Request from ICC and foreign country relating to different conduct

(1) If a request for cooperation is made and a foreign country requests assistance from Australia in respect of a matter relating to conduct other than the conduct that forms the basis of the crime to which the request for cooperation relates, the Attorney General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

(2) If Australia is not under an international obligation to comply with the request from the foreign country, priority must be given to the request for cooperation.

(3) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

(4) In making a determination under subsection (3), the Attorney General must consider all relevant matters, including, but not limited to, the matters specified in subsection 59(5), but must give special consideration to the relative seriousness of the offences to which the requests relate.


61 Notification to ICC of decision refusing request by foreign country

(1) If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney General subsequently refuses the request for assistance from the foreign country, the Attorney General must notify the ICC of the refusal.

(2) The obligation in this section is in addition to the requirement of section 14 for the Attorney General to respond formally to the request for cooperation.


62 Requests involving competing international obligations

If a request for cooperation relates to a person who, or information or property that, is subject to the control of a foreign country or an international organisation under an international agreement, the Attorney General must inform the ICC so as to enable it to direct its request to the foreign country or international organisation.

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

12 Request that may raise problems relating to Australia’s international obligations to a foreign country

(4) If, after the consultation, the Attorney-General is not satisfied as mentioned in subsection (2), the Attorney-General must postpone the execution of the request unless and until the foreign country has made the necessary waiver or given the necessary consent.

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

31 Refusal of surrender

(2) The Attorney-General may refuse a request for surrender of a person if:

there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 39(6) applies; or

there are competing requests from the ICC, and from a foreign country that is not a party to the Statute,
relating to different conduct, and subsection 40(3) applies.

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

37 Request from ICC and a foreign country relating to same conduct

If a request for surrender of a person is made and a foreign country requests the extradition of the person for the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney-General:

must notify the ICC and the foreign country of that fact; and

must determine, in accordance with section 38 or 39, whether the person is to be surrendered or is to be extradited to the foreign country.

38 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute

(1) This section applies if:

section 37 applies; and

the foreign country is a party to the Statute.

(2) Priority must be given to the request from the ICC if:

(a) the ICC has, under article 18 or 19 of the Statute, 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 foreign country in respect of its request for extradition; or

(b) the ICC makes such a determination after receiving notification of the request for extradition from the foreign country.

(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:

the steps required to be taken under the Extradition Act 1988 in relation to a request for extradition may continue to be taken; but

no person may be extradited under that Act pursuant to the request unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.

39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

section 37 applies; and
the foreign country is not a party to the Statute.

(2) Priority must be given to the request for surrender if:
Australia is not under an international obligation to extradite the person to the foreign country; and
the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(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.

If Australia is under an international obligation to extradite the person to the foreign country, the Attorney-General must determine whether to surrender the person or to extradite the person to the foreign country.

In making the determination under subsection (6), the Attorney-General must consider all relevant matters, including, but not limited to:

the respective dates of the requests; and

the interests of the foreign country, including, if relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

the possibility of subsequent surrender between the ICC and the foreign country.

40 Request from ICC and foreign country relating to different conduct

If a request for surrender of a person is made and a foreign country requests the extradition of the person for conduct other than the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney-General must determine whether the person is to be surrendered or is to be extradited to the foreign country.

If Australia is not under an international obligation to extradite the person to the foreign country, priority must be given to the request from the ICC.

If Australia is under an international obligation to extradite the person to the foreign country, the Attorney-General must determine whether to surrender the person or to extradite the person to the foreign country.

In making the determination under subsection (3), the Attorney-General must consider all relevant matters, including, but not limited to, the matters specified in subsection 39(7), but must give special consideration to the relative nature and gravity of the conduct for which surrender and extradition are sought.

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

51 Refusal of assistance

The Attorney-General may refuse a request for cooperation:

if there are competing requests from the ICC, and from a foreign country that is not a party to the Statute, relating to the same conduct, and subsection 59(4) applies; or

if there are competing requests from the ICC, and from a foreign country, relating to different conduct, and subsection 60(3) applies.

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

56 Competing requests

(1) If a request for cooperation is made and a foreign country makes a request for assistance to which Australia is under an international obligation to respond, the Attorney-General must, after consultation with the ICC and that country, try to comply with both requests.

(2) For the purposes of subsection (1), the Attorney-General may do either or both of the following:

postpone the execution of either of the requests;

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 requests must be resolved in accordance with sections 57 to 61.

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

56 Competing requests

(1) If a request for cooperation is made and a foreign country makes a request for assistance to which Australia is under an international obligation to respond, the Attorney-General must, after consultation with the ICC and that country, try to comply with both requests.

(2) For the purposes of subsection (1), the Attorney-General may do either or both of the following:
postpone the execution of either of the requests;

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 requests must be resolved in accordance with sections 57 to 61.

57 Request from ICC and a foreign country relating to same conduct

If a request for cooperation is made and a foreign country requests assistance from Australia in respect of a matter relating to the conduct that forms the basis of the crime to which the request for cooperation relates, the Attorney-General:

must notify the ICC and the foreign country of that fact; and

must determine, in accordance with section 58 or 59, whether the request for cooperation or the request from the foreign country is to be complied with.

58 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute

(1) This section applies if:

section 57 applies; and

the foreign country is a party to the Statute.

(2) Priority must be given to the request for cooperation if:

the ICC has, under article 18 or 19 of the Statute, made a determination that the case is admissible and that determination takes into account the investigation or prosecution conducted by the foreign country; or

the ICC makes such a determination after receiving notification of the request from the foreign country.

(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:

any preliminary steps required to be taken to give effect to the request from the foreign country may continue to be taken; but

the request may not be complied with unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.

(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.

59 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute

(1) This section applies if:

section 57 applies; and

the foreign country is not a party to the Statute.

(2) Priority must be given to the request for cooperation if:

Australia is not under an international obligation to comply with the request from the foreign country; and the ICC has determined under article 18 or 19 of the Statute that the case is admissible.

(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.

(4) If Australia is under an international obligation to comply with the request from the foreign country, the Attorney-General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

(5) In making a determination under subsection (4), the Attorney-General must consider all relevant matters, including, but not limited to:

the respective dates of the requests; and

the interests of the foreign country, including, if relevant, whether the crime to which the request from that country relates was committed in its territory and the nationality of the victims and of the person who is alleged to have engaged in the conduct forming the basis of that crime.

60 Request from ICC and foreign country relating to different conduct

(1) If a request for cooperation is made and a foreign country requests assistance from Australia in respect of a matter relating to conduct other than the conduct that forms the basis of the crime to which the request for cooperation relates, the Attorney-General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

If Australia is not under an international obligation to comply with the request from the foreign country, priority must be given to the request for cooperation.

If Australia is under an international obligation to comply with the request from the foreign country, the Attorney-General must determine whether the request for cooperation or the request from the foreign country is to be complied with.

In making a determination under subsection (3), the Attorney-General must consider all relevant matters, including, but not limited to, the matters specified in subsection 59(5), but must give special consideration to the relative seriousness of the offences to which the requests relate.

61 Notification to ICC of decision refusing request by 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 the request for assistance from the foreign country, 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 for cooperation.

62 Requests involving competing international obligations

If a request for cooperation relates to a person who, or information or property that, is subject to the control of a foreign country or an international organisation under an international agreement, the Attorney-General must inform the ICC so as to enable it to direct its request to the foreign country or international organisation.

Rome Statute

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.