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

13 Confidentiality of request

(1) A person dealing with a request for cooperation must keep the request, and any documents supporting it, confidential except to the extent that it is necessary to disclose the request or such a document for the purpose of executing the request.

(2) If the ICC requests that particular information made available in connection with a request for cooperation be provided and handled in a manner that protects the safety, or physical or psychological well being, of any victims, potential witnesses and their families, a person dealing with the request must ensure that the information is provided and handled in that manner.

Part 7—Information provided in confidence by third party

142 Disclosure of information provided in confidence by third party

(1) If the ICC requests the giving of information or documents that were provided to Australia on a confidential basis by a foreign country or by an intergovernmental or international organisation (in either case referred to as the originator), the Attorney General must seek the consent of the originator before giving the information or documents to the ICC.

(2) If the originator is a party to the Statute that consents to disclosure of the information or documents, the Attorney General must, subject to Part 8, give the information or documents to the ICC.

(3) If the originator is a party to the Statute that undertakes to resolve the issue of disclosure of the information or documents with the ICC under article 73 of the Statute, the Attorney General must inform the ICC of the undertaking.

(4) If the originator is not a party to the Statute and refuses to consent to disclosure of the information or documents, the Attorney General must inform the ICC that he or she is unable to give the information or documents because of an existing obligation of confidentiality to the originator.

(5) If the originator is not a party to the Statute and consents to disclosure of the information or documents, the Attorney General must, subject to Part 8, give the information or documents to the ICC.


143 Request for Australia’s consent to disclosure

If a request is received from a foreign country for Australia’s consent to the disclosure to the ICC of information or documents that had been disclosed by Australia to the country on a confidential basis, the Attorney General must either:

(a) consent to the disclosure; or
(b) undertake to deal with the matter in accordance with Part 8.

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

(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

13 Confidentiality of request

(1) A person dealing with a request for cooperation must keep the request, and any documents supporting it, confidential except to the extent that it is necessary to disclose the request or such a document for the purpose of executing the request.

(2) If the ICC requests that particular information made available in connection with a request for cooperation be provided and handled in a manner that protects the safety, or physical or psychological well-being, of any victims, potential witnesses and their families, a person dealing with the request must ensure that the information is provided and handled in that manner.

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

Part 7—Information provided in confidence by third party

142 Disclosure of information provided in confidence by third party

If the ICC requests the giving of information or documents that were provided to Australia on a confidential basis by a foreign country or by an intergovernmental or international organisation (in either case referred to as the originator), the Attorney-General must seek the consent of the originator before giving the information or documents to the ICC.

If the originator is a party to the Statute that consents to disclosure of the information or documents, the Attorney-General must, subject to Part 8, give the information or documents to the ICC.

If the originator is a party to the Statute that undertakes to resolve the issue of disclosure of the information or documents with the ICC under article 73 of the Statute, the Attorney-General must inform the ICC of the undertaking.

If the originator is not a party to the Statute and refuses to consent to disclosure of the information or documents, the Attorney-General must inform the ICC that he or she is unable to give the information or documents because of an existing obligation of confidentiality to the originator.

If the originator is not a party to the Statute and consents to disclosure of the information or documents, the Attorney-General must, subject to Part 8, give the information or documents to the ICC.

143 Request for Australia’s consent to disclosure

If a request is received from a foreign country for Australia’s consent to the disclosure to the ICC of information or documents

that had been disclosed by Australia to the country on a confidential basis, the Attorney-General must either:consent to the disclosure; or

undertake to deal with the matter in accordance with Part 8.

Article 72
Protection of national security information
1. This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue.
2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73.
4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.
5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:
(a) Modification or clarification of the request;
(b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;
(c) Obtaining the information or evidence from a different source or in a different form; or
(d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence.
6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests.
7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions:
(a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4:
(i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and
(iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or
(b) In all other circumstances:
(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

Article 73
Third-party information or documents
If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator.

Article 87
Requests for cooperation: general provisions
3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.

Article 93
Other forms of cooperation
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.