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—

(b)the Minister is satisfied that 1 of the discretionary restrictions on surrender specified in section 55(2) applies and that it is appropriate in the circumstances that surrender be refused; or

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

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)

PART 4 - ARREST AND SURRENDER OF PERSON TO ICC

Restrictions on surrender

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)

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—

(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

Article 90
Competing requests
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.