Part 3—Requests by the ICC for arrest and surrender of persons
Division 4—Surrender of persons
37 Request from ICC and a foreign country relating to same conduct
If a request for surrender of a person is made and a foreign country requests the extradition of the person for the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney General:
(a) must notify the ICC and the foreign country of that fact; and
(b) must determine, in accordance with section 38 or 39, whether the person is to be surrendered or is to be extradited to the foreign country.
38 Procedure where competing request relating to same conduct from a foreign country that is a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is a party to the Statute.
(2) Priority must be given to the request from the ICC if:
(a) the ICC has, under article 18 or 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 foreign country in respect of its request for extradition; or
(b) the ICC makes such a determination after receiving notification of the request for extradition from the foreign country.
(3) If the ICC has not made a determination referred to in subsection (2), then, pending the making of such a determination:
(a) the steps required to be taken under the Extradition Act 1988 in relation to a request for extradition may continue to be taken; but
(b) no person may be extradited under that Act pursuant to the request unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(4) Paragraph (3)(b) does not apply if the ICC does not make its determination on an expedited basis.
39 Procedure where competing request relating to same conduct from a foreign country that is not a party to the Statute
(1) This section applies if:
(a) section 37 applies; and
(b) the foreign country is not a party to the Statute.
(2) Priority must be given to the request for surrender if:
(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has determined under article 18 or 19 of the Statute that the case is admissible.
(3) The request for extradition by the foreign country may continue to be dealt with if:
(a) Australia is not under an international obligation to extradite the person to the foreign country; and
(b) the ICC has not yet determined under article 18 or 19 of the Statute that the case is admissible.
(4) Despite subsection (3), no person may be extradited under the Extradition Act 1988 pursuant to the request for extradition unless and until the ICC makes its determination on admissibility and determines that the case is inadmissible.
(5) Subsection (4) does not apply if the ICC does not make its determination on an expedited basis.
(6) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney General must determine whether to surrender the person or to extradite the person to the foreign country.
(7) In making the determination under subsection (6), the Attorney General must consider all relevant matters, including, but not limited to:
(a) the respective dates of the requests; and
(b) the interests of the foreign country, 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 foreign country.
40 Request from ICC and foreign country relating to different conduct
(1) If a request for surrender of a person is made and a foreign country requests the extradition of the person for conduct other than the conduct that forms the basis of the crime for which the person’s surrender is sought, the Attorney General must determine whether the person is to be surrendered or is to be extradited to the foreign country.
(2) If Australia is not under an international obligation to extradite the person to the foreign country, priority must be given to the request from the ICC.
(3) If Australia is under an international obligation to extradite the person to the foreign country, the Attorney General must determine whether to surrender the person or to extradite the person to the foreign country.
(4) In making the determination under subsection (3), the Attorney General must consider all relevant matters, including, but not limited to, the matters specified in subsection 39(7), but must give special consideration to the relative nature and gravity of the conduct for which surrender and extradition are sought.
41 Notification of decision on extradition to foreign country
(1) If, following notification under article 90 of the Statute, the ICC has determined that a case is inadmissible and the Attorney General subsequently refuses to extradite the person to the foreign country under the Extradition Act 1988, the Attorney General must notify the ICC of the refusal.
(2) The obligation in this section is in addition to the requirement of section 14 for the Attorney General to respond formally to the request from the ICC.
Competing request
Admissibility challenge - competing request
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