Refusal of ICC request

Australia

Australia - ICC Act 2002 (2016)

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

11 Consultations with ICC

(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.

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.

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

(a) 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
(b) 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.

(3) The restrictions on extradition specified in the Extradition Act 1988 do not apply in relation to a request for surrender of a person.

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

Division 4—Surrender of persons


33 Previous proceedings against person sought

(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.

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

(3) If the ICC determines that the case is inadmissible, surrender must be refused.

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

Division 4—Surrender of persons


36 Challenges to admissibility in other cases

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

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


51 Refusal of assistance

(1) The Attorney General must refuse a request for cooperation in circumstances referred to in subsection 142(4) (which relates to third party information that cannot be disclosed).

(2) The Attorney General may refuse a request for cooperation:

(a) in circumstances referred to in Part 8 (which relates to the protection of national security interests); or
(b) 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
(c) if there are competing requests from the ICC, and from a foreign country, relating to different conduct, and subsection 60(3) applies.

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


55 Postponement where admissibility challenge

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

Part 4—Other requests by ICC

Division 15—Other types of assistance


103 Other types of assistance

(2) The Attorney General must refuse the request if the request is prohibited by Australian law and:

(a) the ICC does not modify the request as contemplated by paragraph 3 of article 93 of the Statute and section 53; or
(b) the assistance requested cannot be provided in a way referred to in paragraph 5 of article 93 of the Statute and subsection 11(2) or can only be provided subject to conditions that the ICC does not accept.

Part 4—Other requests by ICC

Division 16—Miscellaneous


104 Effect of authorisation to execute request

At any time before a formal response to a request for cooperation is sent to the ICC, the Attorney General may decide that the request is to be refused, or the execution of the request is to be postponed, on a ground specified in section 51 or 52 even if the Attorney General has previously authorised the execution of the request.

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

(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.

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.

(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.

(3) The restrictions on extradition specified in the Extradition Act 1988 do not apply in relation to a request for surrender of a person.

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

(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.

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

(3) If the ICC determines that the case is inadmissible, surrender must be refused.

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

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

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 must refuse a request for cooperation in circumstances referred to in subsection 142(4) (which relates to third party information that cannot be disclosed).

The Attorney-General may refuse a request for cooperation:

in circumstances referred to in Part 8 (which relates to the protection of national security interests); or

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

55 Postponement where admissibility challenge

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

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 15—Other types of assistance

103 Other types of assistance

(1) This section applies if:

(2) The Attorney-General must refuse the request if the request is prohibited by Australian law and:
the ICC does not modify the request as contemplated by paragraph 3 of article 93 of the Statute and section 53; or

the assistance requested cannot be provided in a way referred to in paragraph 5 of article 93 of the Statute and subsection 11(2) or can only be provided subject to conditions that the ICC does not accept.

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 15—Other types of assistance

103 Other types of assistance

(1) This section applies if:

(2) The Attorney-General must refuse the request if the request is prohibited by Australian law and:
the ICC does not modify the request as contemplated by paragraph 3 of article 93 of the Statute and section 53; or

the assistance requested cannot be provided in a way referred to in paragraph 5 of article 93 of the Statute and subsection 11(2) or can only be provided subject to conditions that the ICC does not accept.

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 16- Miscellaneous

104 Effect of authorisation to execute request

At any time before a formal response to a request for cooperation is sent to the ICC, the Attorney-General may decide that the request is to be refused, or the execution of the request is to be postponed, on a ground specified in section 51 or 52 even if the Attorney-General has previously authorised the execution of the request.

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 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.

Article 93 Other forms of cooperation

4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.