Request for arrest and surrender

Australia

Australia - ICC Act 2002 (2016)

Part 1—Preliminary

4 Definitions

request for arrest and surrender of a person means a request made to Australia by the ICC for the arrest and surrender of the person and, if a request has previously been made by the ICC for the provisional arrest of the person, includes a subsequent request made by the ICC for the surrender of the person.

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

7 What constitutes a request for cooperation

(1) A request for cooperation is a request made by the ICC to Australia, in respect of an investigation or prosecution that the Prosecutor is conducting or proposing to conduct, for:

(a) assistance in connection with any one or more of the following:
(i) the arrest (including the provisional arrest), and surrender to the ICC, of a person in relation to whom the ICC has issued a warrant of arrest or a judgment of conviction;

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

Division 3—Arrest of persons

20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

(a) the Attorney General receives a request for arrest and surrender of a person; and
(b) Division 2 has been complied with in respect of the request;
the Attorney General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney General a report stating that the magistrate has issued the warrant.

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

request for surrender of a person means a request made by the ICC for the surrender of the person, whether in conjunction with a request made by the ICC for the arrest of the person or subsequent to a request made by the ICC for the provisional arrest of the person.

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

Division 2—Documentation to accompany request


17 Documentation for request for arrest and surrender of person for whom warrant of arrest has been issued
If a request is made for arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre Trial Chamber under article 58 of the Statute, the request must contain or be supported by:
(a) information describing the person sought, being information sufficient to identify the person; and
(b) information as to the person’s probable location; and
(c) a copy of the warrant of arrest, authenticated by the ICC; and
(d) any other documents, statements or information required by or under the regulations.


18 Documentation for request for arrest and surrender of person already convicted
If a request is made for arrest and surrender of a person who has already been convicted, the request must contain or be supported by:
(a) a copy of any warrant of arrest for the person, authenticated by the ICC; and
(b) a copy of the judgment of conviction, authenticated by the ICC; and
(c) information to demonstrate that the person sought is the person referred to in the judgment of conviction; and
(d) if the person sought has been sentenced:
(i) a copy of the sentence imposed, authenticated by the ICC; and
(ii) in the case of a sentence of imprisonment—a statement of any period already served and the period remaining to be served.

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

Part 1—Preliminary

4 Definitions

In this Act, unless the contrary intention appears:

request for surrender of a person means a request made by the ICC for the surrender of the person, whether in conjunction with a request made by the ICC for the arrest of the person or subsequent to a request made by the ICC for the provisional arrest of the 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 1 Documentation to Cover Request

17 Documentation for request for arrest and surrender of person for whom warrant of arrest has been issued

If a request is made for arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58 of the Statute, the request must contain or be supported by:

information describing the person sought, being information sufficient to identify the person; and
information as to the person’s probable location; and

a copy of the warrant of arrest, authenticated by the ICC; and

any other documents, statements or information required by or under the regulations.

18 Documentation for request for arrest and surrender of person already convicted

If a request is made for arrest and surrender of a person who has already been convicted, the request must contain or be supported by:

a copy of any warrant of arrest for the person, authenticated by the ICC; and

a copy of the judgment of conviction, authenticated by the ICC; and

information to demonstrate that the person sought is the person referred to in the judgment of conviction; and

if the person sought has been sentenced:

a copy of the sentence imposed, authenticated by the ICC; and

in the case of a sentence of imprisonment—a statement of any period already served and the period remaining to be served.

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 3—Arrest of persons

20 Arrest following request for arrest and surrender

(1) Subject to section 22, if:

the Attorney-General receives a request for arrest and surrender of a person; and
Division 2 has been complied with in respect of the request;

the Attorney-General may, by written notice in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2) If the Attorney-General issues such a notice, a copy of any warrant of arrest or judgment of conviction that was issued by the ICC must be attached to the notice.

(3) A magistrate must issue a warrant, by writing in the statutory form, for the person’s arrest if an application is made, in the statutory form, on behalf of the ICC, for issue of a warrant pursuant to the notice.

(4) After the warrant has been issued, the magistrate must without delay send to the Attorney-General a report stating that the magistrate has issued the warrant.

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

42 Detention following surrender warrants

If the Attorney-General issues a surrender warrant in relation to a person who is on bail, the person must be brought as soon as practicable before a magistrate in the State or Territory in which the person is on remand.

The magistrate must remand the person in custody for such period or periods as may be necessary to enable the warrant to be executed.

43 Content of surrender warrants

(1) A surrender warrant in relation to the person (the relevant person) must:

(a) require the person in whose custody the relevant person is being held to release the relevant person into the custody of a police officer; and

(b) authorise the police officer to transport the relevant person in custody, and, if necessary or convenient, to detain the relevant person in custody, for the purpose of enabling the relevant person:

to be placed in the custody of a specified person who is an officer of the ICC or other person authorised by the ICC; and

to be transported to a place specified by the ICC; and

(c) authorise the specified person to transport the relevant person in custody to a place specified by the ICC for the purpose of surrendering the relevant person to a person appointed by the ICC to receive the person.

(2) A place referred to in paragraph (1)(b) or (c) may be a place in or outside Australia.

44 Execution of surrender warrants

Subject to this Division, a surrender warrant must be executed according to its terms.

45 Release from remand

(1) If:

a surrender warrant has been issued in relation to a person; and

the person is in custody in Australia under the warrant, or otherwise under this Act, more than 21 days after the day on which the warrant was first liable to be executed; and

the person applies to the Supreme Court of the State or Territory in which the person is in custody; and

reasonable notice of the intention to apply has been given to the Attorney-General;

the Court must, subject to subsection (2), order that the person be released from that custody .

(2) However, if the Court is satisfied that the surrender warrant has not been executed within the period of 21 days, or since the person last made an application under subsection (1), as the case may be:

because to do so would have endangered the person’s life, or would have prejudiced the person’s health; or

for any other reasonable cause;

the Court must not order that the person be released from custody.

46 Effect of surrender to ICC on person’s terms of imprisonment

(1) If, at the time when a person was surrendered in connection with a crime within the jurisdiction of the ICC, the person was serving a sentence of imprisonment in respect of an offence against a law of the Commonwealth or of a Territory, or was otherwise subject to detention under a law of the Commonwealth or of a Territory:

(a) any period spent by the person in custody in connection with the surrender warrant; and

(b) subject to subsection (2), any period spent by the person in custody in connection with detention by, or on the order of, the ICC in respect of the crime;

are to be counted as periods served towards the sentence of imprisonment or period of detention.

If the person is convicted of the crime within the jurisdiction of the ICC, the period spent by the person in custody serving a sentence of imprisonment imposed by the ICC for the crime is not to be counted as a period towards the sentence of imprisonment or period of detention referred to in subsection (1).

A reference in this section to a period spent in custody includes a reference to a period spent in custody outside Australia.

47 Expiry of Australian sentences while under ICC detention

If:

at the time when a person was surrendered, the person was serving a sentence of imprisonment in respect of an offence against an Australian law, or was otherwise subject to detention under an Australian law; and

each such sentence of imprisonment that the person was serving, or each such period of detention to which the person was subject, at that time expires while the person is being detained by, or on the order of, the ICC;

the Attorney-General must without delay inform the ICC of the expiry.

48 Waiver of rule of speciality

If the ICC requests Australia under paragraph 2 of article 101 of the Statute to waive the requirements of paragraph 1 of that article in respect of a person surrendered by Australia, the Attorney-General may waive the requirements accordingly.

Before deciding whether to waive the requirements, the Attorney-General may request the ICC to provide additional information in accordance with article 91 of the Statute.

Rome Statute

Article 59 Arrest proceedings in the custodial State

1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.

2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:

(a) The warrant applies to that person;

(b) The person has been arrested in accordance with the proper process; and

(c) The person's rights have been respected.

3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.

4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).

5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision.

6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.

7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.

Article 89 Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.