PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Restrictions on provision of assistance

114.
Refusal of assistance—

(2)The Attorney-General may refuse a request by the ICC to which this Part applies if—

(a)Part 8 (which relates to the protection of national security or third party information) applies; or

PART 5 - DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Miscellaneous

123.
Execution of request by Prosecutor—

(3)The provisions of this Act and the Statute, allowing a person heard or examined by the ICC under article 72 of the Statute to invoke restrictions designed to prevent disclosure of confidential information connected with national security, apply to the execution of requests for assistance under article 99 of the Statute.

PART 8 - PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION

National security

157.
National security issues to be dealt with under article 72—

If an issue relating to New Zealand's national security interests arises at any stage of any proceedings before the ICC, the issue must be dealt with in the manner provided in article 72 of the Statute and this Part.

Cf Statute, article 72(1) and (4)

158.
Part 9 request involving national security—

(1)If a request for assistance made under Part 9 of the Statute appears to concern the production of any documents or disclosure of evidence that would, in the opinion of the Attorney-General, prejudice New Zealand's national security interests, that request must be dealt with in accordance with the process specified in sections 161 and 162.

(2)If, having followed the specified process the matter is not able to be resolved, the Attorney-General may refuse the request or decline to authorise the production of the documents or giving of the evidence, as the case may be.

Cf Statute, articles 72(1), 93(4), 99(5)

159.
Information or evidence involving national security—

(1)This section applies if a person who has been requested to give information or evidence—

(a)refuses to do so on the ground that disclosure would prejudice the national security interests of New Zealand; or

(b)refers the matter to the Attorney-General on the ground that disclosure would prejudice the national security interests of New Zealand.

(2)If this section applies, the Attorney-General must determine whether or not he or she is of the opinion that the giving of information or evidence would prejudice New Zealand's national security interests.

(3)If the Attorney-General confirms that he or she is of the opinion that disclosure would prejudice New Zealand's national security interests, the matter must be dealt with in accordance with the process specified in sections 161 and 162.

(4)If, having following the specified process, the matter has not been resolved, the Attorney-General may refuse the request or decline to authorise the provision of the information or giving of the evidence, as the case may be.

Cf Statute, articles 72(2), 93(4)

160.
Other situations involving national security—

(1)If, in any circumstances other than those specified in sections 158 and 159, the Attorney-General is of the opinion that the disclosure of information or documents to the ICC would prejudice New Zealand's national security interests, the matter must be dealt with in accordance with the process specified in sections 161 and 162.

(2)Without limiting subsection (1), this section applies if the Attorney-General learns that information or documents are being, or are likely to be, disclosed at any stage of the proceedings, and intervenes in accordance with article 72(4) of the Statute.

(3)If, having followed the specified process, the matter has not been resolved and the ICC has not made an order for disclosure under article 72(7)(b)(i) of the Statute, the Attorney-General may refuse the request or decline to authorise the provision of the information or giving of the evidence, as the case may be.

Cf Statute, articles 72(4) and 72(7)(b)(i), 93(4)

161.
Consultation with ICC required—

The Attorney-General must consult with the ICC and, if appropriate, the defence, in accordance with article 72(5) of the Statute.

Cf Statute, article 72(5)

162.
Procedure where no resolution—

(1)If, after consultation, the Attorney-General considers that there are no means or conditions under which the information or documents or evidence could be provided or disclosed or given without prejudice to New Zealand's national security interests, the Attorney-General must notify the ICC, in accordance with article 72(6) of the Statute, of the specific reasons for his or her decision, unless a specific description of the reasons would result itself in prejudice to New Zealand's national security interests.

(2)The Attorney-General must use his or her best endeavours with a view to reaching a mutually satisfactory outcome if—

(a)the ICC determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused; and

(b)the issue of disclosure arises in the circumstances specified in section 158 or section 159 and the Attorney-General is of the opinion that New Zealand's national security interests would be prejudiced by disclosure; and

(c)the ICC requests further consultations for the purpose of considering the representations, which may include hearings in camera and ex parte.

(3)The Attorney-General must comply with an ICC disclosure order if—

(a)the ICC determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the defendant; and

(b)the issue of disclosure arises in the circumstances specified in section 160(1); and

(c)the ICC orders disclosure in accordance with article 72(7)(b)(i) of the Statute.

Cf Statute, articles 72(6) and (7), 93(4)

163.
Attorney-General must take into account ICC's ability to refer matter to Security Council—

In determining what action to take in relation to a matter to which this Part applies, the Attorney-General must take into account the power of the ICC to refer a matter to the Assembly of States Parties or to the Security Council in accordance with article 87(7) of the Statute if the ICC considers that a requested State is not acting in accordance with its obligations under the Statute.

Cf Statute, articles 72(7)(a)(ii), 87(7)


Information provided by third party

164.
Disclosure of information provided by third party—

(1)If the ICC requests the provision of a document or information that was provided or disclosed to New Zealand in confidence by another State, intergovernmental organisation, or international organisation, the Attorney-General must seek the consent of the originator before providing that document or information to the ICC.

(2)If the originator is a State Party that consents to disclosure of the information or document, the Attorney-General must, subject to article 72 of the Statute, provide that information or document to the ICC.

(3)If the originator is a State Party that undertakes to resolve the issue of disclosure with the ICC under article 73, the Attorney-General must inform the ICC of that undertaking.

(4)If the originator is not a State Party and refuses to consent to disclosure, the Attorney-General must inform the ICC that he or she is unable to provide the document or information because of an existing obligation of confidentiality to the originator.

Cf Statute, articles 72, 73

165.
Request for New Zealand's consent to disclosure—

(1)If a request is received from another State for New Zealand's consent to the disclosure to the ICC of a document or information that had been disclosed to the State in confidence, the Attorney-General must either—

(a)consent to the disclosure; or

(b)undertake to resolve the matter with the ICC.

(2)The provision of an undertaking under subsection (1)(b) does not prevent the Attorney-General from refusing the assistance sought in accordance with section 164(4).

Cf Statute, article 73

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 93
Other forms of cooperation
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.