Postponement - admissibility challenge

Australia

Australia - ICC Act 2002 (2016)

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:

(a) a determination on admissibility of the kind specified in section 33, 35 or 36 is pending before the ICC;

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


52 Postponement of execution of request

(1) The Attorney General may postpone the execution of a request for cooperation if, and only if:

(b) a determination of admissibility is pending before the ICC, and section 55 applies; or
(c) there are competing requests from the ICC and from a foreign country to which Australia is under an international obligation, and paragraph 56(2)(a) applies; or
(d) the request is for assistance under paragraph 1(l) of article 93 of the Statute, and subsection 11(2) applies; or
(e) the request involves a conflict with Australia’s international obligations, and subsection 12(4) applies.

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


55 Postponement where admissibility challenge

(1) This section applies if the ICC is considering an admissibility challenge under article 18 or 19 of the Statute in respect of a case to which a request for cooperation relates.

(2) If the ICC has not made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney General may postpone the execution of the request until the ICC has made its determination on admissibility.

(3) If the ICC has made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney General may not postpone the execution of the request under this section but must deal with it under this Part.

(4) If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.

(5) If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

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

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:
a determination on admissibility of the kind specified in section 33, 35 or 36 is pending before the ICC; or

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

(2) The Attorney-General may postpone the execution of the request for surrender until the ICC has made its determination on admissibility.

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

36 Challenges to admissibility in other cases

This section applies if the ICC is considering an admissibility challenge under article 18 or 19 of the Statute, other than a challenge of the kind referred to in section 33 or 35.

The Attorney-General may, pending a determination by the ICC on the admissibility challenge, postpone the execution of a request under this Part in respect of the crime within the jurisdiction of the ICC to which the challenge relates.

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

52 Postponement of execution of request

(1) The Attorney-General may postpone the execution of a request for cooperation if, and only if:
the execution of the request would interfere with an ongoing investigation or prosecution in Australia involving different conduct from the conduct to which the request relates, and section 54 applies; or

a determination of admissibility is pending before the ICC, and section 55 applies; or

there are competing requests from the ICC and from a foreign country to which Australia is under an international obligation, and paragraph 56(2)(a) applies; or

the request is for assistance under paragraph 1(l) of article 93 of the Statute, and subsection 11(2) applies; or

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 4 Other requests by ICC

Division 3—Restrictions on provision of assistance

55 Postponement where admissibility challenge

This section applies if the ICC is considering an admissibility challenge under article 18 or 19 of the Statute in respect of a case to which a request for cooperation relates.

If the ICC has not made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may postpone the execution of the request until the ICC has made its determination on admissibility.

If the ICC has made an order under article 18 or 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may not postpone the execution of the request under this section but must deal with it under this Part.

If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.

If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.

Rome Statute

Article 17 Issues of admissibility

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Article 18 Preliminary rulings regarding admissibility

1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.

2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.

3. The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation.

4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis.

5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay.

6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available.

7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.

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

1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.

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.

3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court.

4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c).

5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity.

6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82.

7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.

8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court:

(a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;

(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and

(c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.

9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge.

10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.

11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.

Article 95 Postponement of execution of a request in respect of an admissibility challenge

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.