ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
PART 9. INTERNATIONAL COOPERATION
AND JUDICIAL ASSISTANCE
Article 86
General obligation to cooperate
States Parties shall, in accordance with the provisions of this Statute,
cooperate fully with the Court in its investigation and prosecution of
crimes within the jurisdiction of the Court.
Article 87
Requests for cooperation: general provisions
1. (a)
The Court shall have the authority to make requests to States Parties for
cooperation. The requests shall be transmitted through the diplomatic channel
or any other appropriate channel as may be designated by each State Party
upon ratification, acceptance, approval or accession.
Subsequent changes to the designation shall be made by each State Party
in accordance with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the
provisions of subparagraph (a), requests may also be transmitted through
the International Criminal Police Organization or any appropriate regional
organization.
2. Requests
for cooperation and any documents supporting the request shall either be
in or be accompanied by a translation into an official language of the
requested State or one of the working languages of the Court, in accordance
with the choice made by that State upon ratification, acceptance, approval
or accession.
Subsequent changes to this choice shall be made in accordance with the
Rules of Procedure and Evidence.
3. The
requested State shall keep confidential a request for cooperation and any
documents supporting the request, except to the extent that the disclosure
is necessary for execution of the request.
4. In
relation to any request for assistance presented under this Part, the Court
may take such measures, including measures related to the protection of
information, as may be necessary to ensure the safety or physical or psychological
well-being of any victims, potential witnesses and their families. The
Court may request that any information that is made available under this
Part shall be provided and handled in a manner that protects the safety
and physical or psychological well-being of any victims, potential witnesses
and their families.
5. (a)
The Court may invite any State not party to this Statute to provide assistance
under this Part on the basis of an ad hoc arrangement, an agreement with
such State or any other appropriate basis.
(b) Where a State not party to this Statute, which
has entered into an ad hoc arrangement or an agreement with the Court,
fails to cooperate with requests pursuant to any such arrangement or agreement,
the Court may so inform the Assembly of States Parties or, where the Security
Council referred the matter to the Court, the Security Council.
6. The
Court may ask any intergovernmental organization to provide information
or documents. The Court may also ask for other forms of cooperation and
assistance which may be agreed upon with such an organization and which
are in accordance with its competence or mandate.
7. Where
a State Party fails to comply with a request to cooperate by the Court
contrary to the provisions of this Statute, thereby preventing the Court
from exercising its functions and powers under this Statute, the Court
may make a finding to that effect and refer the matter to the Assembly
of States Parties or, where the Security Council referred the matter to
the Court, to the Security Council.
Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their
national law for all of the forms of cooperation which are specified under
this Part.
Article 89
Surrender of persons to the Court
1. The
Court may transmit a request for the arrest and surrender of a person,
together with the material supporting the request outlined in article 91,
to any State on the territory of which that person may be found and shall
request the cooperation of that State in the arrest and surrender of such
a person. States Parties shall, in accordance with the provisions of this
Part and the procedure under their national law, comply with requests for
arrest and surrender.
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.
3. (a)
A State Party shall authorize, in accordance with its national procedural
law, transportation through its territory of a person being surrendered
to the Court by another State, except where transit through that State
would impede or delay the surrender.
(b) A request by the Court for transit shall be
transmitted in accordance with article 87. The request for transit shall
contain:
(i) A description of the person
being transported;
(ii) A brief statement of the facts
of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained
in custody during the period of transit;
(d) No authorization is required if the person
is transported by air and no landing is scheduled on the territory of the
transit State;
(e) If an unscheduled landing occurs on the territory
of the transit State, that State may require a request for transit from
the Court as provided for in subparagraph (b). The transit State shall
detain the person being transported until the request for transit is received
and the transit is effected, provided that detention for purposes of this
subparagraph may not be extended beyond 96 hours from the unscheduled landing
unless the request is received within that time.
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 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 91
Contents of request for arrest and surrender
1. A request
for arrest and surrender shall be made in writing. In urgent cases, a request
may be made by any medium capable of delivering a written record, provided
that the request shall be confirmed through the channel provided for in
article 87, paragraph 1 (a).
2. In
the case of a request for the arrest and surrender of a person for whom
a warrant of arrest has been issued by the Pre-Trial Chamber under article
58, the request shall contain or be supported by:
(a) Information describing the
person sought, sufficient to identify the person, and information as to
that person's probable location;
(b) A copy of the warrant of arrest;
and
(c) Such documents, statements
or information as may be necessary to meet the requirements for the surrender
process in the requested State, except that those requirements should not
be more burdensome than those applicable to requests for extradition pursuant
to treaties or arrangements between the requested State and other States
and should, if possible, be less burdensome, taking into account the distinct
nature of the Court.
3. In the
case of a request for the arrest and surrender of a person already convicted,
the request shall contain or be supported by:
(a) A copy of any warrant of
arrest for that person;
(b) A copy of the judgement of
conviction;
(c) Information to demonstrate
that the person sought is the one referred to in the judgement of conviction;
and
(d) If the person sought has been
sentenced, a copy of the sentence imposed and, in the case of a sentence
for imprisonment, a statement of any time already served and the time remaining
to be served.
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 92
Provisional arrest
1. In
urgent cases, the Court may request the provisional arrest of the person
sought, pending presentation of the request for surrender and the documents
supporting the request as specified in article 91.
2. The
request for provisional arrest shall be made by any medium capable of delivering
a written record and shall contain:
(a) Information describing the
person sought, sufficient to identify the person, and information as to
that person's probable location;
(b) A concise statement of the
crimes for which the person's arrest is sought and of the facts which are
alleged to constitute those crimes, including, where possible, the date
and location of the crime;
(c) A statement of the existence
of a warrant of arrest or a judgement of conviction against the person
sought; and
(d) A statement that a request
for surrender of the person sought will follow.
3. A person
who is provisionally arrested may be released from custody if the requested
State has not received the request for surrender and the documents supporting
the request as specified in article 91 within the time limits specified
in the Rules of Procedure and Evidence. However, the person may consent
to surrender before the expiration of this period if permitted by the law
of the requested State. In such a case, the requested State shall proceed
to surrender the person to the Court as soon as possible.
4. The
fact that the person sought has been released from custody pursuant to
paragraph 3 shall not prejudice the subsequent arrest and surrender of
that person if the request for surrender and the documents supporting the
request are delivered at a later date.
Article 93
Other forms of cooperation
1. States
Parties shall, in accordance with the provisions of this Part and under
procedures of national law, comply with requests by the Court to provide
the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts
of persons or the location of items;
(b) The taking of evidence, including
testimony under oath, and the production of evidence, including expert
opinions and reports necessary to the Court;
(c) The questioning of any person
being investigated or prosecuted;
(d) The service of documents,
including judicial documents;
(e) Facilitating the voluntary
appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of
persons as provided in paragraph 7;
(g) The examination of places
or sites, including the exhumation and examination of grave sites;
(h) The execution of searches
and seizures;
(i) The provision of records and
documents, including official records and documents;
(j) The protection of victims
and witnesses and the preservation of evidence;
(k) The identification, tracing
and freezing or seizure of proceeds, property and assets and instrumentalities
of crimes for the purpose of eventual forfeiture, without prejudice to
the rights of bona fide third parties; and
(l) Any other type of assistance
which is not prohibited by the law of the requested State, with a view
to facilitating the investigation and prosecution of crimes within the
jurisdiction of the Court.
2. The Court
shall have the authority to provide an assurance to a witness or an expert
appearing before the Court that he or she will not be prosecuted, detained
or subjected to any restriction of personal freedom by the Court in respect
of any act or omission that preceded the departure of that person from
the requested State.
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.
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.
5. Before
denying a request for assistance under paragraph 1 (l), the requested State
shall consider whether the assistance can be provided subject to specified
conditions, or whether the assistance can be provided at a later date or
in an alternative manner, provided that if the Court or the Prosecutor
accepts the assistance subject to conditions, the Court or the Prosecutor
shall abide by them.
6. If
a request for assistance is denied, the requested State Party shall promptly
inform the Court or the Prosecutor of the reasons for such denial.
7. (a)
The Court may request the temporary transfer of a person in custody for
purposes of identification or for obtaining testimony or other assistance.
The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his
or her informed consent to the transfer; and
(ii) The requested State agrees
to the transfer, subject to such conditions as that State and the Court
may agree.
(b) The person being transferred shall remain in
custody. When the purposes of the transfer have been fulfilled, the Court
shall return the person without delay to the requested State.
8. (a)
The Court shall ensure the confidentiality of documents and information,
except as required for the investigation and proceedings described in the
request.
(b) The requested State may, when necessary, transmit
documents or information to the Prosecutor on a confidential basis. The
Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion
or at the request of the Prosecutor, subsequently consent to the disclosure
of such documents or information. They may then be used as evidence pursuant
to the provisions of Parts 5 and 6 and in accordance with the Rules of
Procedure and Evidence.
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.
(ii) Failing that, competing requests shall be
resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court
concerns information, property or persons which are subject to the control
of a third State or an international organization by virtue of an international
agreement, the requested States shall so inform the Court and the Court
shall direct its request to the third State or international organization.
10. (a)
The Court may, upon request, cooperate with and provide assistance to a
State Party conducting an investigation into or trial in respect of conduct
which constitutes a crime within the jurisdiction of the Court or which
constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance
provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements,
documents or other types of evidence obtained in the course of an investigation
or a trial conducted by the Court; and
b. The questioning of any person
detained by order of the Court;
(ii) In the case of assistance under subparagraph
(b) (i) a:
a. If the documents or other
types of evidence have been obtained with the assistance of a State, such
transmission shall require the consent of that State;
b. If the statements, documents
or other types of evidence have been provided by a witness or expert, such
transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out
in this paragraph, grant a request for assistance under this paragraph
from a State which is not a Party to this Statute.
Article 94
Postponement of execution of a request in respect
of ongoing investigation or prosecution
1. If
the immediate execution of a request would interfere with an ongoing investigation
or prosecution of a case different from that to which the request relates,
the requested State may postpone the execution of the request for a period
of time agreed upon with the Court. However, the postponement shall be
no longer than is necessary to complete the relevant investigation or prosecution
in the requested State. Before making a decision to postpone, the requested
State should consider whether the assistance may be immediately provided
subject to certain conditions.
2. If
a decision to postpone is taken pursuant to paragraph 1, the Prosecutor
may, however, seek measures to preserve evidence, pursuant to article 93,
paragraph 1 (j).
Article 95
Postponement of execution of a request in
respect of an admissibility challenge
Where there is an admissibility challenge under consideration by the Court
pursuant to article 18 or 19, the requested State may postpone the execution
of a request under this Part pending a determination by the Court, unless
the Court has specifically ordered that the Prosecutor may pursue the collection
of such evidence pursuant to article 18 or 19.
Article 96
Contents of request for other forms of
assistance under article 93
1. A
request for other forms of assistance referred to in article 93 shall be
made in writing. In urgent cases, a request may be made by any medium capable
of delivering a written record, provided that the request shall be confirmed
through the channel provided for in article 87, paragraph 1 (a).
2. The
request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the
purpose of the request and the assistance sought, including the legal basis
and the grounds for the request;
(b) As much detailed information
as possible about the location or identification of any person or place
that must be found or identified in order for the assistance sought to
be provided;
(c) A concise statement of the
essential facts underlying the request;
(d) The reasons for and details
of any procedure or requirement to be followed;
(e) Such information as may be
required under the law of the requested State in order to execute the request;
and
(f) Any other information relevant
in order for the assistance sought to be provided.
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.
4. The
provisions of this article shall, where applicable, also apply in respect
of a request for assistance made to the Court.
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.
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.
Article 99
Execution of requests under articles 93 and 96
1. Requests
for assistance shall be executed in accordance with the relevant procedure
under the law of the requested State and, unless prohibited by such law,
in the manner specified in the request, including following any procedure
outlined therein or permitting persons specified in the request to be present
at and assist in the execution process.
2. In
the case of an urgent request, the documents or evidence produced in response
shall, at the request of the Court, be sent urgently.
3. Replies
from the requested State shall be transmitted in their original language
and form.
4. Without
prejudice to other articles in this Part, where it is necessary for the
successful execution of a request which can be executed without any compulsory
measures, including specifically the interview of or taking evidence from
a person on a voluntary basis, including doing so without the presence
of the authorities of the requested State Party if it is essential for
the request to be executed, and the examination without modification of
a public site or other public place, the Prosecutor may execute such request
directly on the territory of a State as follows:
(a) When the State Party requested
is a State on the territory of which the crime is alleged to have been
committed, and there has been a determination of admissibility pursuant
to article 18 or 19, the Prosecutor may directly execute such request following
all possible consultations with the requested State Party;
(b) In other cases, the Prosecutor
may execute such request following consultations with the requested State
Party and subject to any reasonable conditions or concerns raised by that
State Party. Where the requested State Party identifies problems with the
execution of a request pursuant to this subparagraph it shall, without
delay, consult with the Court to resolve the matter.
5. Provisions
allowing a person heard or examined by the Court under article 72 to invoke
restrictions designed to prevent disclosure of confidential information
connected with national security shall also apply to the execution of requests
for assistance under this article.
Article 100
Costs
1. The
ordinary costs for execution of requests in the territory of the requested
State shall be borne by that State, except for the following, which shall
be borne by the Court:
(a) Costs associated with the
travel and security of witnesses and experts or the transfer under article
93 of persons in custody;
(b) Costs of translation, interpretation
and transcription;
(c) Travel and subsistence costs
of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the
Deputy Registrar and staff of any organ of the Court;
(d) Costs of any expert opinion
or report requested by the Court;
(e) Costs associated with the
transport of a person being surrendered to the Court by a custodial State;
and
(f) Following consultations, any
extraordinary costs that may result from the execution of a request.
2. The provisions
of paragraph 1 shall, as appropriate, apply to requests from States Parties
to the Court. In that case, the Court shall bear the ordinary costs of
execution.
Article 101
Rule of speciality
1. A
person surrendered to the Court under this Statute shall not be proceeded
against, punished or detained for any conduct committed prior to surrender,
other than the conduct or course of conduct which forms the basis of the
crimes for which that person has been surrendered.
2. The
Court may request a waiver of the requirements of paragraph 1 from the
State which surrendered the person to the Court and, if necessary, the
Court shall provide additional information in accordance with article 91.
States Parties shall have the authority to provide a waiver to the Court
and should endeavour to do so.
Article 102
Use of terms
For the purposes
of this Statute:
(a)
"surrender" means the delivering up of a person by a State to the Court,
pursuant to this Statute.
(b)
"extradition" means the delivering up of a person by one State to another
as provided by treaty, convention or national legislation.
Part 8 || Part 10