Cooperation under procedures of national law

Australia

Australia - ICC Act 2002 (2016)

Part 4—Other requests by ICC

Division 3—Restrictions on provision of assistance


53 Procedure if assistance precluded under Australian law

If:

(a) the execution of a particular measure of assistance specified in a request for cooperation is prohibited in Australia; and
(b) the Attorney General consults with the ICC in accordance with subsection 11(2) in respect of the request; and
(c) 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.

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.

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

10 Execution of requests

A request for cooperation must be executed in accordance with the relevant procedure under the applicable Australian law (as provided in this Act).

If the request states that it should be executed in a particular manner that is not prohibited by Australian law or by using a particular procedure that is not prohibited by Australian law, the Attorney-General must use his or her best efforts to ensure that the request is executed in that manner or by using that procedure, as the case may be.

(3) This section does not affect the operation of subsection 106(1) (which allows the Prosecutor in certain circumstances to execute a request for cooperation to which Part 4 applies) or section 107 (which allows the Prosecutor in certain circumstances to conduct investigations in Australia).

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 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.

Rome Statute

Article 88 Availability of procedures under national law

States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.

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.

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(a) The identification and whereabouts of persons or the location of items;

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;

(c) The questioning of any person being investigated or prosecuted;

(d) The service of documents, including judicial documents;

(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;

(f) The temporary transfer of persons as provided in paragraph 7;

(g) The examination of places or sites, including the exhumation and examination of grave sites;

(h) The execution of searches and seizures;

(i) The provision of records and documents, including official records and documents;

(j) The protection of victims and witnesses and the preservation of evidence;

(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and

(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

Article 99 Execution of requests under articles 93 and 96

1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process.