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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.
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
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:
(c) 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
51 Refusal of assistance
(2) The Attorney General may refuse a request for cooperation:
(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
61 Notification to ICC of decision refusing request by foreign country
(1) If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney General subsequently refuses the request for assistance from the foreign country, the Attorney General must notify the ICC of the refusal.
(2) The obligation in this section is in addition to the requirement of section 14 for the Attorney General to respond formally to the request for cooperation.
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
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
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:
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
51 Refusal of assistance
The Attorney-General may refuse a request for cooperation:
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
61 Notification to ICC of decision refusing request by foreign country
If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney-General subsequently refuses the request for assistance from the foreign country, the Attorney-General must notify the ICC of the refusal.
The obligation in this section is in addition to the requirement of section 14 for the Attorney-General to respond formally to the request for cooperation.
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.
8. 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
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.