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

Division 4—Surrender of persons


42 Detention following surrender warrants

(1) 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.

(2) 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:
(i) 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
(ii) 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) a surrender warrant has been issued in relation to a person; and
(b) 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
(c) the person applies to the Supreme Court of the State or Territory in which the person is in custody; and
(d) 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:

(a) because to do so would have endangered the person’s life, or would have prejudiced the person’s health; or
(b) 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.

(2) 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).

(3) 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:

(a) 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
(b) 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

(1) 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.

(2) 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.

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.

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.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.