Admissibility challenge - ne bis in idem

Australia

Australia - ICC Act 2002 (2016)

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

Division 4—Surrender of persons


31 Refusal of surrender

(1) The Attorney General must refuse a request for surrender of a person if the ICC determines that the case is inadmissible and subsection 33(4), 35(3) or 36(3) applies.

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

Division 4—Surrender of persons


33 Previous proceedings against person sought

(1) This section applies if the person whose surrender is sought alleges to the Attorney General that:

(a) the case is one to which paragraph 1 of article 20 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 paragraph 3(a) or (b) of article 20 of the Statute applies.

(2) The Attorney General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under the Statute.

(3) If the ICC has determined that the case is admissible, surrender cannot be refused on the ground of the person’s previous conviction, acquittal or trial in respect of the relevant conduct.

(4) If the ICC has determined that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground of the person’s previous conviction, acquittal or trial, as the case may be, in respect of the relevant conduct.

(5) If an admissibility determination is pending, the Attorney General may postpone the execution of a request until the ICC has made its determination.

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

(1) The Attorney-General must refuse a request for surrender of a person if the ICC determines that the case is inadmissible and subsection 33(4), 35(3) or 36(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

33 Previous proceedings against person sought

(1) This section applies if the person whose surrender is sought alleges to the Attorney-General that:

the case is one to which paragraph 1 of article 20 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

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 paragraph 3(a) or (b) of article 20 of the Statute applies.

(2) The Attorney-General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under the Statute.

(3) If the ICC has determined that the case is admissible, surrender cannot be refused on the ground of the person’s previous conviction, acquittal or trial in respect of the relevant conduct.

(4) If the ICC has determined that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground of the person’s previous conviction, acquittal or trial, as the case may be, in respect of the relevant conduct.

(5) If an admissibility determination is pending, the Attorney-General may postpone the execution of a request until the ICC has made its determination.

Rome Statute

Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case

2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by:

(a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58;

(b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or

(c) A State from which acceptance of jurisdiction is required under article 12.

Article 20 Ne bis in idem

1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.

3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

Article 89 Surrender of persons to the Court

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.