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

(1) This section applies if the person whose surrender is sought alleges to the Attorney-General that:

the case is one to which paragraph 1 of article 20 of the Statute applies (because it relates to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the ICC); or

the person has been tried by another court for conduct also proscribed under article 6, 7 or 8 of the Statute and the case is not one to which paragraph 3(a) or (b) of article 20 of the Statute applies.

(2) The Attorney-General must immediately consult with the ICC to determine if there has been a relevant determination on admissibility under the Statute.

(3) If the ICC has determined that the case is admissible, surrender cannot be refused on the ground of the person’s previous conviction, acquittal or trial in respect of the relevant conduct.

(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.

(5) If an admissibility determination is pending, the Attorney-General may postpone the execution of a request until the ICC has made its determination.

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

(1) This section applies if:

the conduct has been investigated in Australia, and a decision was made not to prosecute the person sought;

Article 20
Ne bis in idem
1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.
2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.