CHAPTER 1. GENERAL PROVISIONS
Section 7
1. If Our Minister considers that there are obstacles or impediments to granting a request of the ICC for cooperation or enforcement, he shall immediately consult with the ICC in order to remove these obstacles or impediments.
2. The following may in any event constitute obstacles or impediments as referred to in subsection 1:
(a) insufficient information for the request to be granted;
(b) the person to be arrested at the request of the ICC cannot be located in the Netherlands, despite best endeavours;
(c) the person arrested at the request of the ICC on the basis of an arrest warrant is not the person referred to in the warrant;
(d) granting the request in its present form would result in a breach of a treaty obligation that existed prior to the request and is owed to another State;
(e) granting the request in its present form would result in a violation of the principle of ne bis in idem referred to in article 20 of the Statute;
(f) a prosecution of the person claimed for the same acts is either in progress or in preparation in the Netherlands;
(g) granting the request of the ICC immediately would obstruct an investigation or prosecution in a case other than that to which the request relates;
(h) granting the request would prejudice the national security interests of the Netherlands as referred to in article 72 of the Statute;
(i) the case referred to in section 25, subsection 1.
3. If the public prosecutor responsible for executing a request of the ICC finds obstacles or impediments as referred to in this section, he shall notify Our Minister immediately.
4. Our Minister shall request the ICC to respond within a reasonable period to be determined in consultation. This period may be extended at the request of the ICC.
5. The processing of a request for the surrender of a person or for enforcement of a decision of the ICC shall be suspended for the duration of the period referred to in subsection 4. The processing of a request for any other form of cooperation may be suspended by Our Minister or, as the case may be, by the public prosecutor after consultation with Our Minister.
6. If Our Minister or the authorities designated by him consider that a request for the assistance of the host State cannot be granted, he shall immediately consult with the ICC in accordance with the headquarters agreement referred to in article 3, paragraph 2 of the Statute and the regulations and agreements based on it, in order to resolve the matter.

CHAPTER 2. SURRENDER OF PERSONS TO THE ICC

§ 5. Decision on the request and actual surrender

Section 30

2. If the surrender has been declared admissible and Our Minister considers that he needs further information from the ICC in order to make a sound decision, he may defer the decision and consult the ICC. Depending on the result of the consultation with the ICC, he may again forward the file of the case to the public prosecutor who has dealt with the request for surrender, after which sections 21-29 will apply again.

CHAPTER 2. SURRENDER OF PERSONS TO THE ICC
§ 5. Decision on the request and actual surrender
Section 33
1. Within ten days of the decision of Our Minister to grant the request for surrender wholly or partially, the person claimed shall be surrendered to the ICC at a time and place to be determined by Our Minister in consultation with the ICC.

CHAPTER 2. SURRENDER OF PERSONS TO THE ICC

§ 2. Provisional arrest

Section 16

2. The investigating judge shall not make an order as referred to in subsection 1 until the ICC, having been consulted for this purpose through the intermediary of Our Minister, has made recommendations pursuant to article 59, paragraph 5 of the Statute within a period to be determined by Our Minister.

CHAPTER 2. SURRENDER OF PERSONS TO THE ICC

§ 3. Arrest

Section 20

1. The investigating judge may order, on his own initiative, on the application of the public prosecutor or at the request of the person claimed or his counsel, that on account of urgent and exceptional circumstances the deprivation of liberty in accordance with the provisions of § 3 of this chapter be ended or discontinued or suspended subject to conditions. The conditions to be imposed shall in any event be designed to prevent absconding.
2. Section 16, subsections 2-5, shall apply mutatis mutandis.

CHAPTER 2. SURRENDER OF PERSONS TO THE ICC

§ 4. Hearing and ruling by the District Court

Section 25

1. The District Court shall suspend the investigation for the purpose of consultation with the ICC if, in the provisional opinion of the District Court, the person brought before it is not the person whose surrender has been requested.

CHAPTER 4. ENFORCEMENT OF SENTENCES

Section 56

3. A pardon may be requested and granted, in accordance with article 558 of the Code of Criminal Procedure, in respect of sentences of imprisonment which have been imposed by the ICC for offences against the administration of justice of the ICC as referred to in article 70, paragraph 1, of the Statute and in respect of other sentences imposed by the ICC if enforcement takes place in the Netherlands. Before a decision is taken on the granting of a pardon, Our Minister shall consult with the ICC in order to learn its views.

Article 89
Surrender of persons to the Court
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Article 91
Contents of request for arrest and surrender
4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.

Article 93
Other forms of cooperation
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.

Article 96
Contents of request for other forms of assistance under article 93
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.

Article 97
Consultations
Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or
(c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.

This provision follows the ICC Statute.

 

Section 7 of the ICC Implementation Act 2002 provides a non-exhaustive list of potential obstacles that may require consultation with the Court and, consequently, suspension of execution of ICC request. The list of obstacles includes the potential violation of the principle of ne bis in idem, which would provide grounds for the review of the exercise of jurisdiction by the Court (Goran Sluiter, "Implementation of the ICC Statute in the Dutch legal order" (2004) 2(1) Journal of International Criminal Justice, 158, at 163).