CHAPTER 5. ASSISTANCE PROVIDED BY THE HOST STATE

Section 87

1. If witnesses, experts, victims or other persons who should be present at the seat of the ICC, no matter what their nationality, come to the Netherlands in response to a summons or subpoena or a warrant to bring them before the ICC or in response to a request of the ICC to the Netherlands for admission in accordance with the conditions in the headquarters agreement referred to in article 3, paragraph 2 of the Statute, they may not be prosecuted, arrested or subjected to any other measure that restricts their liberty in the Netherlands for offences or convictions that preceded their arrival in the Netherlands.
2. The immunity referred to in subsection 1 shall cease to apply if the person concerned, although he had the opportunity to leave the Netherlands, for fifteen successive days after the date on which his presence was no longer required by the ICC has remained in the Netherlands or has returned to the Netherlands within that period.

Article 98
Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

This provision is narrower than the ICC Statute.

Section 87 of the ICC Implementation Act 2002 grants persons who have to appear at the seat of the Court with immunity from persecution in the Netherlands. This immunity, peculiar to the Netherlands, due to its role as host state of the ICC, covers conduct prior to the person's arrival in the Netherlands and ceases 15 days after the presence of the person at the ICC is no longer required. Through this provision, the Netherlands satisfies its obligations as Host State to facilitate the functioning of the Court by not deterring persons from entering the territory of the Netherlands for fear of prosecution. It is to be noted that the provisions relating to jurisdiction remain unaffected by the provision, allowing the Netherlands to exercise jurisdiction over persons on its territory for the crimes under the jurisdiction of the Court if they fail to fall within the ambit of Section 87 of the ICC Implementation Act 2002. Section 16 of the International Crimes Act 2003 offers immunity to foreign Heads of State and State officials, persons who have immunity under customary international law or under treaties binding upon the Netherlands while they are in office. This provision is in accordance with the approach of the International Court of Justice in the case of Democratic Republic of Congo v. Belgium (Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ, 14 February 2002). However, it is narrower the Rome Statute, which provides that official capacity is irrelevant.