PART 2 - INTERNATIONAL CRIMES AND OFFENCES AGAINST ADMINISTRATION OF JUSTICE

Co-operation relating to offences against administration of justice

23.
Co-operation relating to offences against administration of justice—

(2)In addition to the grounds of refusal or postponement specified in Parts 4 and 5, a request for surrender or other assistance that relates to an offence involving the administration of justice may be refused if, in the opinion of the Minister of Justice or Attorney-General, as the case may be, there are exceptional circumstances that would make it unjust or oppressive to surrender the person or give the assistance requested.

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

28.
Consultation—

(2)Before refusing any request for assistance, the Attorney-General or the Minister, as the case may be, must consult with the ICC to ascertain whether the assistance sought could be provided—

(a)subject to conditions; or

(b)at a later date or in an alternative manner.

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

28.
Consultation—


(3)Without limiting the types of conditions under which assistance may be provided, the Attorney-General may agree to the transmission of documents or information to the Prosecutor on a confidential basis, on the condition that the Prosecutor will use them solely for the purpose of generating new evidence.

(4)If the Attorney-General transmits documents or information subject to the condition specified in subsection (3), the Attorney-General may subsequently consent to the disclosure of such documents or information for use as evidence under the provisions of Parts 5 and 6 of the Statute and in accordance with the Rules.

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

30.
Response to be sent to ICC—


(2)If the Attorney-General or the Minister decides, in accordance with the Statute and this Act, to refuse or postpone the assistance requested, in whole or in part, the notice to the ICC must set out the reasons for the decision.

(3)If the request for assistance cannot be executed for any other reason, the notice to the ICC must set out the reasons for the inability or failure to execute the request.

PART 3 - GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

Official capacity of suspect or accused no bar to request

31.
Official capacity of person no bar to request—

(1)The existence of any immunity or special procedural rule attaching to the official capacity of any person is not a ground for—

(a)refusing or postponing the execution of a request for surrender or other assistance by the ICC; 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

(c)section 66(3) applies.

(2)The Minister may refuse a request by the ICC for the surrender of a person if—

(a)there are competing requests from the ICC and a State that is not a party to the Statute relating to the same conduct and section 63(4) applies; or

(b)there are competing requests from the ICC and a State that is not a party to the Statute relating to different conduct and section 64(3) applies.

(3)To avoid doubt,—

(a)the only grounds on which surrender to the ICC may be refused are those specified in this section and, if applicable, section 23(2) (which relates to offences involving the administration of justice); and

(b)the restrictions on surrender specified in the Extradition Act 1999 do not apply in relation to a request for surrender from the ICC.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

55.
Refusal of surrender—

(3)To avoid doubt,—

(b)the restrictions on surrender specified in the Extradition Act 1999 do not apply in relation to a request for surrender from the ICC.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

57.
Previous proceedings against person sought—

(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.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

59.
Person being prosecuted in New Zealand for same conduct—

(3)If the ICC determines that the case is inadmissible, surrender must be refused.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

60.
Other challenges to admissibility—

(2)If the ICC determines that the case is inadmissible, surrender must be refused.

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

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)

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

66.
Conflict with obligations to another State—

(3)If the ICC advises that it does not intend to proceed with the request, surrender must be refused.

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

Other types of assistance

113.
Request for other types of assistance—

(4)If the Attorney-General considers that the assistance sought cannot lawfully be provided, the Attorney-General must, before refusing the request, and in accordance with article 93(5) of the Statute,—

(a)consult with the ICC:

(b)consider whether the assistance can be provided subject to conditions or whether it can be provided at a later date or in an alternative manner.

Cf 1995 No 27 s 56; Statute, article 93(1)(l), (2), and (5)

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—

(a)the ICC does not accept the conditions or other modifications suggested in order to implement the request as contemplated by article 93(5) of the Statute and section 113(4); or

(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

(c)section 120(4) applies.

(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

(b)there are competing requests from the ICC and a State that is not a party to the Statute relating to the same conduct and section 63(4) (as applied by section 119) applies; or

(c)there are competing requests from the ICC and a State that is not a party to the Statute relating to different conduct and section 64(3) (as applied by section 119) applies.

(3)To avoid doubt,—

(a)the only grounds on which assistance to the ICC may be refused are those specified in this section and, if applicable, section 23(2) (which relates to offences involving the administration of justice); and

(b)the restrictions on assistance specified in the Mutual Assistance in Criminal Matters Act 1992 do not apply in relation to a request by the ICC for assistance to which this Part applies.

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

Miscellaneous

121.
Effect of authority to proceed—

At any time before a formal response is sent to the ICC, the Attorney-General may decide that a request by the ICC for assistance to which this Part applies will be refused or the execution of the request postponed, on a ground specified in section 114 or section 115, even if the Attorney-General has previously given authority for the request to proceed.

PART 7 - PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Person in transit

136.
Transit by person being surrendered or transferred to ICC—

(4)Despite subsection (3), the Minister must not refuse a request for transit unless the Minister considers that transit through New Zealand would impede or delay the surrender or transfer of the transferee.

PART 8 - PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION

National security

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)

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
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.