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PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE
24.
Requests for assistance—
(1)This Part applies to a request by the ICC for assistance that is made under—
(b)any of the following articles of the Statute:
(i)article 19(8) (which relates to various steps that the Prosecutor may take with the authority of the ICC):
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Surrender and temporary surrender
47.
Minister must determine whether person to be surrendered—
(2)The Minister must make a surrender order in respect of the person unless—
(a)the Minister is satisfied that surrender of the person must be refused because a mandatory restriction on surrender specified in section 55(1) applies; or
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Restrictions on surrender
55.
Refusal of surrender—
(1)The Minister must refuse a request by the ICC for the surrender of a person if—
(a)there have been previous proceedings against the person and section 57(4) applies; or
(b)the ICC determines that the case is inadmissible and section 59(3) or section 60(2) applies; or
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Restrictions on surrender
56.
Postponement of execution of request for surrender—
(1)The Minister may postpone the execution of a request for surrender under this Part at any time before the person sought is surrendered if, and only if,—
(a)a ruling on admissibility of the kind specified in section 57(1) or section 59(1) or section 60 is pending before the ICC; or
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Restrictions on surrender
57.
Previous proceedings against person sought—
(1)This section applies if the person whose surrender is sought alleges that—
(a)the case is one to which article 20(1) 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
(b)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 paragraphs (a) and (b) of article 20(3) of the Statute applies.
(2)If this section applies, the Minister must immediately consult with the ICC to determine if there has been a relevant ruling on admissibility under the Statute.
(3)If the ICC has ruled that the case is admissible, surrender cannot be refused on the ground there have been previous proceedings.
(4)If the ICC has ruled that the case is inadmissible under article 20 of the Statute, surrender must be refused on the ground that there have been previous proceedings.
(5)If an admissibility ruling is pending, the Minister may postpone the execution of a request until the ICC has made a determination on admissibility.
Cf Statute, articles 20(1) and (3), 89(2)
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Restrictions on surrender
60.
Other challenges to admissibility—
(1)If the ICC is considering an admissibility challenge under article 18 or article 19 of the Statute, other than a challenge of the kind referred to in section 57 or section 59, the Minister may postpone the execution of a request under this Part pending a determination by the ICC.
(2)If the ICC determines that the case is inadmissible, surrender must be refused.
(3)If the ICC determines that the case is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, article 95
PART 4 - ARREST AND SURRENDER OF PERSON TO ICC
Restrictions on surrender
61.
Request from ICC and other State relating to same conduct—
If a request for surrender of a person is received from the ICC and 1 or more States also request the extradition of the person for the same conduct that forms the basis of the crime for which the ICC seeks the person's surrender, the Minister—
(a)must notify the ICC and the requesting State of that fact:
(b)must determine, in accordance with section 62 or section 63, but despite section 99 of the Extradition Act 1999, whether the person is to be surrendered to the ICC or to the requesting State.
Cf Statute, article 90(1)
62.
Procedure where competing request from State Party—
(1)If section 61 applies and the requesting State is a party to the Statute, priority must be given to the request from the ICC if—
(a)the ICC has, under article 18 or article 19 of the Statute, 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 ICC makes such a determination after receiving notification of the competing request.
(2)If the request is one to which subsection (1)(b) relates, then, pending the ICC's determination,—
(a)the steps required to be taken under the Extradition Act 1999 in relation to a request for extradition may continue to be taken; but
(b)No person may be surrendered under that Act unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.
Cf Statute, article 90(2)
63.
Procedure where competing request from non-State Party—
(1)If section 61 applies and the requesting State is not a party to the Statute, priority must be given to the request for surrender from the ICC if—
(a)New Zealand is not under an international obligation to extradite the person to the requesting State; and
(b)the ICC has determined under article 18 or article 19 of the Statute that the case is admissible.
(2)If section 61 applies and the requesting State is not a party to the Statute, the request for extradition may continue to be dealt with if—
(a)New Zealand is not under an international obligation to extradite the person to the requesting State; and
(b)the ICC has not yet determined under article 18 and article 19 of the Statute that the case is admissible.
(3)Despite subsection (2), no person may be surrendered under the Extradition Act 1999 unless and until the ICC makes its decision on admissibility and determines that the case is inadmissible.
(4)If section 61 applies, the requesting State is not a party to the Statute, and New Zealand is under an international obligation to extradite the person to the requesting State, the Minister must determine whether to surrender the person to the ICC or extradite the person to the requesting State.
(5)Section 99(1) of the Extradition Act 1999 does not apply to a determination made under subsection (4).
(6)In making the determination under subsection (4), the Minister must consider all the relevant factors including, without limitation,—
(a)the respective dates of the requests; and
(b)the interests of the requesting State, including, if 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 ICC and the requesting State.
Cf Statute, article 90(4)-(6)
64.
Request from ICC and other State relating to different conduct—
(1)If a request for surrender of a person is received from the ICC and a request for the extradition of that person is received from 1 or more States for conduct other than that which constitutes the crime for which the ICC seeks the person's surrender, the Minister must determine whether the person is to be surrendered to the ICC or to the requesting State.
(2)If New Zealand is not under an existing international obligation to extradite the person to the requesting State, priority must be given to the request from the ICC.
(3)If New Zealand is under an existing international obligation to extradite the person to the requesting State, the Minister must determine whether to surrender the person to the ICC or to extradite the person to the requesting State.
(4)In making the determination under subsection (3), the Minister must consider all the relevant factors, including, without limitation, those matters specified in section 63 of this Act and section 99 of the Extradition Act 1999, but must give special consideration to the relative seriousness of the offences for which surrender is sought.
Cf Statute, article 90(7)
65.
Notification of decision on extradition to requesting State—
(1)If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Minister subsequently refuses extradition of the person to the requesting State under the Extradition Act 1999, the Minister must notify the ICC of this decision.
(2)The obligation in this section is in addition to the requirement in section 30 for the Minister to respond formally to the request from the ICC.
Cf Statute, article 90(8)
66.
Conflict with obligations to another State—
(1)This section applies if—
(a)the ICC makes a request for surrender; and
(b)the ICC has not previously made a final determination on whether or not article 98 of the Statute applies to that request; and
(c)a request is made to the ICC to determine whether or not article 98 of the Statute applies to the request for surrender.
(2)If this section applies, the Minister may postpone the request for surrender until the ICC advises whether or not it intends to proceed with the request for surrender.
(3)If the ICC advises that it does not intend to proceed with the request, surrender must be refused.
(4)If the ICC advises that it intends to proceed with the request for surrender, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, article 98
PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Restrictions on provision of assistance
114.
Refusal of assistance—
(1)The Attorney-General must refuse a request by the ICC for assistance to which this Part applies if—
(b)the ICC determines under article 18 or article 19 of the Statute that the case to which the request relates is inadmissible and section 118(4) applies; or
PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION
Restrictions on provision of assistance
118.
Postponement where admissibility challenge—
(1)This section applies if the ICC is considering an admissibility challenge under article 18 or article 19 of the Statute in respect of a case that a request to which this Part applies relates.
(2)If the ICC has not made an order under article 18 or article 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may postpone the execution of the request until the ICC's determination on admissibility is issued.
(3)If the ICC has made an order under article 18 or article 19 of the Statute allowing the Prosecutor to collect evidence to which the request relates, the Attorney-General may not postpone the execution of a request under this section but must deal with it under this Part.
(4)If the ICC determines that the case to which the request relates is inadmissible, the request must be refused.
(5)If the ICC determines that the case to which the request relates is admissible, and there is no other ground for refusing or postponing the request, the request must continue to be dealt with under this Part.
Cf Statute, article 95
Article 19
Challenges to the jurisdiction of the Court or the admissibility of a case
1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.
2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58;
(b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or
(c) A State from which acceptance of jurisdiction is required under article 12.
3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court.
4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c).
5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity.
6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82.
7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.
8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court:
(a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;
(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and
(c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.
9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge.
10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.
11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.