Consultations with the Court

Australia

Australia - ICC Act 2002 (2016)

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

11 Consultations with ICC

(3) Without limiting the types of conditions under which assistance may be provided, the Attorney General may agree to information or documents being sent 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 sends information or documents subject to the condition specified in subsection (3), the Attorney General may subsequently consent to the disclosure of the 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 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

(1) This section applies where the Attorney General consults with the ICC because the execution of a request for cooperation may raise problems relating to Australia’s obligations to a foreign country under international law or international agreements as mentioned in article 98 of the Statute.

(2) If, after the consultation, the Attorney General is satisfied that the execution of the request would not conflict with any of those obligations, the Attorney General must sign a certificate stating that the execution of the request does not conflict with any of those obligations.

(3) A certificate signed under subsection (2) is conclusive evidence of the matters stated in the certificate.

(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


32 Postponement of execution of request for surrender

(1) The Attorney General may postpone the execution of a request for surrender of a person for a crime within the jurisdiction of the ICC at any time before the person is surrendered if, and only if:

(c) the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies.

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

Division 4—Surrender of persons


33 Previous proceedings against person sought

(2) The Attorney General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under 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 2—General provisions relating to requests by the ICC for cooperation

11 Consultations with ICC

(1) The Attorney-General must consult with the ICC, without delay, if, for any reason, there are or may be problems with the execution of a request for cooperation.

(2) Before refusing a request for assistance of a kind mentioned in paragraph 1(l) of article 93 of the Statute, the Attorney-General must consult with the ICC to ascertain whether the assistance requested 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 information or documents being sent 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 sends information or documents subject to the condition specified in subsection (3), the Attorney-General may subsequently consent to the disclosure of the documents or information for use as evidence under the provisions of Parts 5 and 6 of the Statute and in accordance with the Rules.

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

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

(1) This section applies where the Attorney-General consults with the ICC because the execution of a request for cooperation may raise problems relating to Australia’s obligations to a foreign country under international law or international agreements as mentioned in article 98 of the Statute.

(2) If, after the consultation, the Attorney-General is satisfied that the execution of the request would not conflict with any of those obligations, the Attorney-General must sign a certificate stating that the execution of the request does not conflict with any of those obligations.

(3) A certificate signed under subsection (2) is conclusive evidence of the matters stated in the certificate.

(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

32 Postponement of execution of request for surrender

(1) The Attorney-General may postpone the execution of a request for surrender of a person for a crime within the jurisdiction of the ICC at any time before the person is surrendered if, and only if:

the request involves a conflict with Australia’s international obligations, and subsection 12(4) 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

(2) The Attorney-General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under 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 4 Other requests by ICC

Division 3—Restrictions on provision of assistance

53 Procedure if assistance precluded under Australian law

If: the execution of a particular measure of assistance specified in a request for cooperation is prohibited in Australia; and

the Attorney-General consults with the ICC in accordance with subsection 11(2) in respect of the request; and

the matter is not resolved but the ICC modifies the request so that it can be dealt with under this Act;
the Attorney-General must deal with the request accordingly.

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 .

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 8—Protection of Australia’s national security interests

144 How national security issues are to be dealt with

If the Attorney-General becomes aware of an issue relating to Australia’s national security interests arising at any stage of any proceedings before the ICC, the issue is to be dealt with in the manner provided in this Part.

145 Request for cooperation involving national security

If a request for cooperation appears to relate to the disclosure of any information or documents that would, in the Attorney-General’s opinion, prejudice Australia’s national security interests, the request must be dealt with in accordance with the procedure specified in sections 148 and 149.

If, after the procedure specified in sections 148 and 149 is followed, the request for cooperation is not able to be resolved, the Attorney-General may refuse the request or decline to authorise the disclosure.

146 Request to disclose information or documents involving national security

(1) This section applies if a person who has been requested to disclose information or documents to the ICC:

refuses to do so on the ground that disclosure would prejudice Australia’s national security interests; or

refers the matter to the Attorney-General on that ground.

(2) The Attorney-General must determine whether or not he or she is of the opinion that the disclosure would prejudice Australia’s national security interests.

(3) If the Attorney-General forms the opinion that the disclosure would prejudice Australia’s national security interests, the request for disclosure must be dealt with in accordance with the procedure specified in sections 148 and 149.

(4) If, after the procedure specified in sections 148 and 149 is followed, the request for disclosure is not able to be resolved, the Attorney-General may refuse the request or decline to authorise the disclosure.

147 Other situations involving national security

If, in any circumstances other than those mentioned in sections 145 and 146, the Attorney-General is of the opinion that the disclosure of information or documents to the ICC would prejudice Australia’s national security interests, the matter must be dealt with in accordance with the procedure specified in section 148 and subsection 149(1).

Without limiting subsection (1), if:

the Attorney-General learns that information or documents relating to Australia are being, or are likely to be, disclosed at any stage of the proceedings before the ICC and intervenes in accordance with paragraph 4 of article 72 of the Statute; and

after the procedure specified in section 148 and subsection 149(1) is followed, the matter is not resolved;

the Attorney-General may decline to authorise the disclosure.

148 Consultation with ICC required

The Attorney-General must consult with the ICC and, if appropriate, the defence, in accordance with paragraph 5 of article 72 of the Statute.

149 Procedure where no resolution

If, after the consultation, the Attorney-General decides that there are no means or conditions under which the information or documents could be disclosed without prejudice to Australia’s national security interests, the Attorney-General must notify the ICC, in accordance with paragraph 6 of article 72 of the Statute, of the specific reasons for his or her decision unless a specific description of the reasons would itself result in prejudice to Australia’s national security interests.

If:

the ICC determines that the disclosure is relevant and necessary for the establishment of the guilt or innocence of the accused; and

the issue of disclosure arises in the circumstances specified in section 145 or 146; and

the Attorney-General is of the opinion that Australia’s national security interests would be prejudiced by the disclosure; and

the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte;

the Attorney-General must consult with the ICC.

Rome Statute

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.

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.

Article 91 Contents of request for arrest and surrender

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.

Article 93 Other forms of cooperation

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.

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.

Article 96 Contents of request for other forms of assistance under article 93

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.

Article 97 Consultations

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.