International Criminal Court
LAWS OF TRINIDAD AND TOBAGO
INTERNATIONAL CRIMINAL COURT ACT
CHAPTER 4:26
Act
4 of 2006
Amended by
53 of 2006
Current Authorised Pages
Pages Authorised
(inclusive) by L.R.O.
1–189 ..
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Note on Subsidiary Legislation
This Chapter contains no subsidiary legislation.
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CHAPTER 4:26
INTERNATIONAL CRIMINAL COURT ACT
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
SECTION
1. Short title.
2. Commencement.
3. Purpose.
4. Interpretation.
5. Act to bind the State.
6. Statute to have force of law.
7. Obligations imposed by Statute or Rules.
PART II
INTERNATIONAL CRIMES AND OFFENCES AGAINST
ADMINISTRATION OF JUSTICE
8. Jurisdiction in respect of international crimes.
9. Genocide.
10. Crimes against humanity.
11. War crimes.
12. General principles of criminal law.
13. Attorney General’s consent to prosecutions required.
14. Jurisdiction in respect of offences against administration of justice.
15. Corruption of Judge.
16. Bribery of Judge, etc.
17. Corruption and bribery of official of ICC.
18. False evidence.
19. Fabricating evidence before ICC.
20. Conspiracy to defeat justice in ICC.
21. Interference with witnesses or officials.
22. Attorney General’s consent to prosecutions required.
23. Co-operation relating to offences against administration of justice.
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PART III
GENERAL PROVISIONS RELATING TO REQUESTS
FOR ASSISTANCE
24. Requests for assistance.
25. Requests to be made through authorised channel.
26. Urgent requests.
27. Execution of requests.
28. Consultation.
29. Confidentiality of request.
30. Response to be sent to ICC.
31. Official capacity of person no bar to request.
PART IV
ARREST AND SURRENDER OF PERSON TO ICC
32. Request for arrest and surrender.
33. Attorney General to request issue of arrest warrant.
34. Issue of arrest warrant.
35. Cancellation of warrant.
36. Provisional arrest warrant may be issued.
37. Notice to be given to Attorney General.
38. Procedure where provisional arrest warrant issued.
39. Procedure following arrest.
40. Procedure for bail.
41. Powers of High Court.
42. Detention in place other than prison.
43. Determination of eligibility for surrender.
44. Adjournment of hearing.
45. Surrender by consent.
46. Procedure following determination on eligibility or consent to
surrender.
47. Attorney General must determine whether person be surrendered.
48. Surrender order may take effect at later date.
49. Temporary surrender to ICC.
50. Decision on return to Trinidad and Tobago after trial.
ARRANGEMENT OF SECTIONS—Continued
SECTION
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51. Request for return to ICC after temporary surrender.
52. Trinidad and Tobago sentence continues to run.
53. Form and execution of surrender order or temporary surrender order.
54. Surrender to State of enforcement.
55. Refusal of surrender.
56. Postponement of execution of request for surrender.
57. Previous proceedings against person sought.
58. Ongoing Trinidad and Tobago investigation or proceedings
involving different conduct.
59. Person being prosecuted in Trinidad and Tobago for same conduct.
60. Other challenges to admissibility.
61. Request from ICC and other State relating to same conduct.
62. Procedure where competing request from State Party.
63. Procedure where competing request from non-State Party.
64. Request from ICC and other State relating to different conduct.
65. Notification of decision on extradition to requesting State.
66. Conflict with obligations to another State.
67. Appeal on question of law only by way of case stated.
68. Rules of appeal.
69. Custody pending determination of appeal.
70. Waiver of rights to apply for habeas corpus or to lodge appeal.
71. Powers of Court of Appeal.
72. Further provisions relating to powers of Court of Appeal.
73. Discharge of person if Attorney General declines to order surrender.
74. Discharge of person if not surrendered within two months.
75. Discharge of person if not re-surrendered.
76. Discharge of person under this Part does not preclude further
proceedings.
77. Search and seizure on arrest.
78. Disposal of property seized.
79. Information about time spent in custody in Trinidad and Tobago.
80. Consent to trial of surrendered person for previous offences.
PART V
DOMESTIC PROCEDURES FOR OTHER TYPES OF
CO-OPERATION
81. Assistance in locating or identifying persons or things.
82. Assistance in gathering evidence.
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83. Taking evidence.
84. Producing documents or other articles.
85. Protection of witnesses.
86. ICC may give certificate.
87. Certain persons may appear.
88. Powers of Judge may be exercised by Registrar.
89. Assistance in questioning persons.
90. Procedure where questioning by Trinidad and Tobago agency.
91. Assistance in arranging service.
92. Request for voluntary appearance of witness.
93. Consent required and assurances may be sought.
94. Attorney General may facilitate appearance.
95. Request for temporary transfer of prisoner.
96. Consent required and assurances may be sought.
97. Attorney General may arrange for transfer.
98. Effect of transfer on prisoner’s sentence.
99. Request for information about time spent in custody overseas.
100. Assistance in examining places or sites.
101. Request for search and seizure.
102. Issue of search warrant.
103. Form and content of search warrant.
104. Powers conferred by warrant.
105. Power to stop vehicles.
106. Person executing warrant to produce evidence of authority.
107. Notice of execution of warrant.
108. Disposal of things seized.
109. Facilitating provision of records and documents.
110. Protecting victims and witnesses and preserving evidence.
111. Request relating to property associated with crime.
112. Attorney General may authorise measures.
113. Request for other types of assistance.
114. Refusal of assistance.
115. Postponement of execution of assistance.
116. Procedure if execution of assistance precluded under Trinidad and
Tobago law.
ARRANGEMENT OF SECTIONS—Continued
SECTION
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117. Postponement where ongoing investigation or prosecution.
118. Postponement where admissibility challenged.
119. Competing requests.
120. Requests involving conflict with other international obligations.
121. Effect of authority to proceed.
122. Request may relate to assistance sought by defence.
123. Execution of request by Prosecutor.
PART VI
ENFORCEMENT OF PENALTIES
124. Assistance with enforcement of orders for victim reparation.
125. Enforcement of fines.
126. Request for forfeiture of tainted property.
127. Solicitor General may apply for registration.
128. Method of registration of order.
129. Notice of registration of order.
130. Effect of registration of order.
131. Forfeiture order may be treated as pecuniary penalty order.
132. Third parties may apply for relief.
133. Court may grant relief to third party.
134. Cancellation of registration of order.
135. Money or property recovered to be transferred to ICC.
PART VII
PERSONS IN TRANSIT TO ICC OR SERVING
SENTENCES IMPOSED BY ICC
136. Transit by person being surrendered or transferred to ICC.
137. Transferee to be held in custody.
138. Attorney General must make removal order or issue certificate.
139. Trinidad and Tobago may act as State of enforcement.
140. Request for sentence to be served in Trinidad and Tobago.
141. Prisoner to be held in custody.
142. Order for detention to act as authority for detention.
143. Administration of prison sentence.
144. Transfer of prisoner to ICC for review of sentence.
145. Transfer of prisoner to ICC for other purposes.
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146. Transfer of prisoner to another State to complete sentence.
147. Attorney General must make removal order or issue certificate.
148. Special rules in certain cases.
149. Extradition of escaped ICC prisoner.
150. Certificate giving temporary authority to remain in Trinidad and
Tobago.
151. Cancellation of certificate.
152. Further provisions relating to certificate.
153. Removal order.
154. Delay in removal.
155. Immigration permit not required.
156. Trinidad and Tobago citizens.
PART VIII
PROTECTION OF NATIONAL SECURITY OR THIRD
PARTY INFORMATION
157. National security issues to be dealt with under article 72.
158. Part 9 request involving national security.
159. Information or evidence involving national security.
160. Other situations involving national security.
161. Consultation with ICC required.
162. Procedure where no resolution.
163. Attorney General must take into account ICC’s ability to refer
matter to Security Council.
164. Disclosure of information provided by third party.
165. Request for Trinidad and Tobago’s consent to disclosure.
PART IX
INVESTIGATIONS OR SITTINGS OF ICC IN
TRINIDAD AND TOBAGO
166. Prosecutor may conduct investigations in Trinidad and Tobago.
167. ICC sittings in Trinidad and Tobago.
ARRANGEMENT OF SECTIONS—Continued
SECTION
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168. ICC’s powers while sitting in Trinidad and Tobago.
169. ICC may administer oaths in Trinidad and Tobago.
170. Orders made by ICC not subject to review.
171. Power to detain ICC prisoners in Trinidad and Tobago prisons if
ICC holds sittings in Trinidad and Tobago.
172. Removal of ICC prisoner.
PART X
REQUEST TO ICC FOR ASSISTANCE
173. Attorney General may request assistance from ICC.
174. Making a request.
175. Types of requests to ICC
176. Mutual Assistance in Criminal Matters Act, applies to requests.
177. Extradition Act, applies to requests for surrender.
PART XI
MISCELLANEOUS PROVISIONS AND CONSEQUENTIAL
AMENDMENTS
178. Certificates given by Attorney General.
179. Regulations.
180. Regulations to implement Rules of Procedure and Evidence.
181. Consequential implied amendments.
182. Genocide Act repealed.
SCHEDULE.
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CHAPTER 4:26
INTERNATIONAL CRIMINAL COURT ACT
An Act to provide for the prevention and punishment of
genocide, crimes against humanity and war crimes, to give
effect to the Rome Statute of the International Criminal
Court done at Rome on the Seventeenth Day of July, One
Thousand Nine Hundred and Ninety-Eight; and for
purposes connected therewith or incidental thereto.
*[ ASSENTED TO 21ST FEBRUARY, 2006]
WHEREAS Trinidad and Tobago has ratified the Rome Statute of
the International Criminal Court:
And whereas it is necessary that the Statute of the
International Criminal Court should have effect in Trinidad
and Tobago:
PART I
PRELIMINARY
1. This Act may be cited as the International Criminal
Court Act.
2. This Act came into operation on the 24th February 2006.
3. The purpose of this Act is—
(a) to make provision in Trinidad and Tobago law
for the punishment of certain international
crimes, namely, genocide, crimes against
humanity and war crimes; and
(b) to enable Trinidad and Tobago to co-operate
with the International Criminal Court
established by the Rome Statute in the
performance of its functions.
*See section 2 for date of commencement.
4 of 2006.
Preamble.
Short title.
Commencement.
[53/2006].
Purpose.
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4. (1) In this Act, unless the context otherwise requires—
“Appeals Chamber” means the Appeals Chamber of the ICC;
“appropriate Trinidad and Tobago authority” means the body that
is lawfully responsible for the performance of the relevant
function, or functions of a like kind;
“Attorney General” means the Attorney General of Trinidad and
Tobago;
“forfeiture order” means an order made by the ICC under article
77(2)(b) of the Statute or under the Rules for the forfeiture
of tainted property; and includes a forfeiture order that is
treated for the purposes of enforcement as a fine under
section 131;
“High Court” means the High Court of Justice of Trinidad and
Tobago constituted under the Supreme Court of Judicature
Act and the Constitution;
“ICC” means the International Criminal Court established under
the Statute; and includes any of the organs of the
International Criminal Court referred to in the Statute;
“ICC prisoner” means a person who is—
(a) sentenced to imprisonment by the ICC; or
(b) the subject of a request by the ICC under
section 171(1)(b) to be held in custody during a
sitting of the ICC in Trinidad and Tobago;
“international crime” means, in relation to the ICC, a crime in
respect of which the ICC has jurisdiction under article 5 of
the Statute;
“Minister” means the Minister to whom national security is
assigned;
“Trinidad and Tobago prisoner” or “prisoner” means a person
who is for the time being in the legal custody of any
Trinidad and Tobago prison, whether or not that person has
been convicted of an offence;
“Pre-Trial Chamber” means the Pre-Trial Chamber of the ICC;
“property” means real or personal property of every description,
Interpretation.
Ch. 4:01.
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whether situated in Trinidad and Tobago or elsewhere and
whether tangible or intangible; and includes an interest in
any such real or personal property;
“Prosecutor” means the Prosecutor of the ICC;
“Register” means the Registry of the Supreme Court of
Judicature;
“Rules” means the Rules of Procedure and Evidence made under
article 51 of the Statute;
“Statute” means the Rome Statute of the ICC dated 17th July,
1998 referred to in the Schedule;
“Trial Chamber” means the Trial Chamber of the ICC.
(2) For the purposes of Parts I to XI a reference—
(a) in those Parts to a request by the ICC for
assistance includes a reference to a request by
the ICC for co-operation;
(b) in those Parts to a request by the ICC for
assistance under a specified provision or in
relation to a particular matter includes a reference
to a request by the ICC for co-operation under
that provision or in relation to that matter;
(c) in those Parts to a figure in brackets
immediately following the number of an article
of the Statute is a reference to the paragraph of
that article with the number corresponding to
the figure in brackets;
(d) to a sentence of imprisonment imposed by the
ICC includes a reference to a sentence of
imprisonment extended by the ICC whether for
the non-payment of a fine or otherwise; and
(e) to a sentence of imprisonment imposed by the
ICC for an international crime or an offence
against the administration of justice includes a
reference to a sentence of imprisonment
imposed by the ICC for non-payment of a fine
that was a penalty for that crime or offence, as
the case may be.
Schedule.
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5. This Act binds the State.
6. (1) The provisions of the Statute specified in
subsection (2), shall have the force of law in Trinidad and
Tobago in relation to the following matters:
(a) the making of requests by the ICC to Trinidad
and Tobago for assistance and the method of
dealing with those requests;
(b) the conduct of an investigation by the
Prosecutor or the ICC;
(c) the bringing and determination of proceedings
before the ICC;
(d) the enforcement in Trinidad and Tobago of
sentences of imprisonment or other measures
imposed by the ICC, and any related matters; and
(e) the making of requests by Trinidad and Tobago
to the ICC for assistance and the method of
dealing with those requests.
(2) Subsection (1) applies in relation to the following
provisions of the Statute:
(a) Part 2, which relates to jurisdiction,
admissibility and applicable law;
(b) Part 3, which relates to general principles of
criminal law;
(c) articles 51 and 52 of the Statute, which relate
respectively to the Rules of Procedure and
Evidence, and Regulations of the ICC;
(d) Part 5, which relates to the investigation and
prosecution of crimes within the jurisdiction of
the ICC;
(e) Part 6, which relates to the conduct of trials;
(f) Part 7, which relates to penalties;
(g) Part 8, which relates to appeals and revision of
acquittals, convictions, or sentences;
Act to bind the
State.
Statute to have
force of law.
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(h) Part 9, which relates to international co-
operation and judicial assistance; and
(i) Part 10, which relates to the enforcement of
sentences and other measures imposed by the ICC.
7. For the purposes of any provision of the Statute or the
Rules that confer a power, or impose a duty or function on a
State, that power, duty, or function may be exercised or carried
out on behalf of the Government of Trinidad and Tobago by the
Attorney General, if this Act makes no other provision.
PART II
INTERNATIONAL CRIMES AND OFFENCES AGAINST
ADMINISTRATION OF JUSTICE
Jurisdiction to Try International Crimes
8. (1) Proceedings may be brought for an offence—
(a) against section 9 or 10, if the act constituting
the offence charged is alleged to have
occurred—
(i) on or after the commencement of this
section; or
(ii) on or after the applicable date but before
the commencement of this section, and
would have been an offence under the
law of Trinidad and Tobago in force at the
time the act occurred, had it occurred in
Trinidad and Tobago;
(b) against section 11, if the act constituting the
offence charged is alleged to have occurred on
or after the commencement of this section; and
(c) against section 9, 11 or 19 regardless of—
(i) the nationality or citizenship of the
person accused;
(ii) whether or not any act forming part of the
offence occurred in Trinidad and Tobago; or
Obligations
imposed by
Statute or
Rules.
Jurisdiction in
respect of
international
crimes.
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(iii) whether or not the person accused was in
Trinidad and Tobago at the time that the
act constituting the offence occurred or at
the time a decision was made to charge
that person with an offence.
(2) Subsection (3) applies if a person to whom
subsection (1)(a)(ii) applies, is convicted of an offence against
section 9 or 10.
(3) If this subsection applies, the maximum term of
imprisonment or the maximum fine that may be imposed on the
offender is either—
(a) the maximum term or the maximum fine that
could have been imposed under the laws of
Trinidad and Tobago at the time of the offence,
if that maximum has subsequently been
increased; or
(b) the maximum term or the maximum fine that
can be imposed on the day on which sentence is
to be passed, if that maximum is less than that
prescribed at the time of the offence.
(4) In subsection (1)(a)(ii), applicable date means—
(a) in relation to an offence against section 9,
31st January, 1977; or
(b) in relation to an offence against section 10,
1st January, 1991.
International Crimes
9. (1) Every person is liable on conviction on
indictment to the penalty specified in subsection (3) who, in
Trinidad and Tobago or elsewhere—
(a) commits genocide; or
(b) conspires or agrees with any person to
commit genocide, whether that genocide takes
place in Trinidad and Tobago or elsewhere.
Genocide.
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(2) For the purposes of this section, “genocide” means
any of the following acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to
members of the group;
(c) deliberately inflicting on the group conditions
of life calculated to bring about its physical
destruction in whole or in part;
(d) imposing measures intended to prevent births
within the group; or
(e) forcibly transferring children of the group to
another group.
(3) The penalty for genocide, or conspiring with, or
agreeing with any person to commit genocide is—
(a) if the offence involves the wilful killing of a
person, the same as the penalty for murder; and
(b) in any other case, imprisonment for life or a
lesser term.
10. (1) Every person is liable on conviction on indictment to the
penalty specified in subsection (3) who, in Trinidad and Tobago or
elsewhere, commits a crime against humanity.
(2) For the purposes of this section, a “crime against
humanity” means any of the following acts when committed as
part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation or forcible transfer of population;
(e) imprisonment or other severe deprivation of
physical liberty in violation of fundamental
rules of international law;
(f) torture;
Crimes against
humanity.
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(g) rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilisation, or any other
form of sexual violence of comparable gravity;
(h) persecution against any identifiable group or
collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in
paragraph 3 of article 7 of the Statute, or other
grounds that are universally recognised as
impermissible under international law, in
connection with any act referred to in this
paragraph or any crime within the jurisdiction
of the ICC;
(i) enforced disappearance of persons;
(j) the crime of apartheid; or
(k) other inhumane acts of a similar character
intentionally causing great suffering, or serious
injury to body or to mental or physical health.
(3) The penalty for a crime against humanity is—
(a) if the offence involves the wilful killing of a
person, the same as the penalty for murder; or
(b) in any other case, imprisonment for life or a
lesser term.
11. (1) Every person is liable on conviction on indictment to
the penalty specified in subsection (3) who, in Trinidad and
Tobago or elsewhere, commits a war crime.
(2) For the purposes of this section a war crime is an act
specified in—
(a) article 8(2)(a) of the Statute, which relates to
grave breaches of the First, Second, Third and
Fourth Geneva Conventions;
(b) article 8(2)(b) of the Statute, which relates to
other serious violations of the laws and customs
applicable in international armed conflict;
(c) article 8(2)(c) of the Statute, which relates to
armed conflict not of an international character
War crimes.
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involving serious violations of article 3
common to the Fourth Geneva Convention of
12th August, 1949; or
(d) article 8(2)(e) of the Statute, which relates to
other serious violations of the laws and customs
applicable in armed conflict not of an
international character.
(4) The penalty for a war crime is—
(a) if the offence involves the wilful killing of a
person, the same as the penalty for murder; or
(b) in any other case, imprisonment for life or a
lesser term.
General Principles of Criminal Law
12. (1) For the purposes of proceedings for an offence
under section 9, 10 or 11—
(a) the following provisions of the Statute apply,
with any necessary modifications:
(i) article 20, which relates to crimes for
which a person has previously been
acquitted or convicted;
(ii) article 22(2), which relates to principles
of interpretation to be applied to the
definition of crimes;
(iii) article 24(2), which relates to the effect of
changes in the law;
(iv) article 25, which relates to principles of
individual criminal responsibility;
(v) article 26, which relates to the exclusion
of jurisdiction over persons under
eighteen years;
(vi) article 28, which relates to the
responsibility of commanders and other
superiors;
(vii) article 29, which excludes any statute of
limitations;
General
principles of
criminal law.
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(viii) article 30, which relates to the mental
element of crimes;
(ix) article 31, which specifies grounds for
excluding criminal responsibility;
(x) article 32, which relates to mistakes of
fact or law; and
(xi) article 33, which relates to superior
orders and prescription of law;
(b) the provisions of Trinidad and Tobago law and
the principles of criminal law applicable to the
offence under Trinidad and Tobago law apply;
(c) a person charged with the offence may rely on
any justification, excuse, or defence available
under the laws of Trinidad and Tobago or under
international law; and
(d) notwithstanding paragraphs (b) and (c), the fact
that an act done outside Trinidad and Tobago is
not an offence under the law of the place where it
was done is not a justification, excuse, or defence.
(2) For the purposes of subsection (1)(a), the
articles of the Statute specified in that subsection, other than
article 20, apply as if—
(a) a reference to the ICC were a reference to the
Trinidad and Tobago Court exercising
jurisdiction in respect of the proceedings; and
(b) a reference to the Statute includes a reference to
this Act.
(3) If there is any inconsistency between the
provisions specified in subsection (1)(a) and the provisions and
principles specified in subsections (1)(b) and (1)(c), the
provisions specified in subsection (1)(a) shall prevail.
(4) For the purposes of interpreting and applying articles 6
to 8 of the Statute in proceedings for an offence against section 9,
10, or 11, the Trinidad and Tobago Court exercising jurisdiction
in the proceedings may have regard to any elements of crimes
adopted or amended in accordance with article 9 of the Statute.
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Consent to Prosecutions for International Crimes
13. (1) Proceedings for an offence against section 9, 10
or 11 may not be instituted in any Trinidad and Tobago Court
without the consent of the Attorney General.
(2) Notwithstanding subsection (1), a person charged
with an offence under section 9, 10 or 11 may be arrested, or a
warrant for his or her arrest may be issued and executed, and the
person may be remanded in custody or on bail, even though the
consent of the Attorney General to the institution of a
prosecution for the offence has not been obtained, but no further
proceedings can be taken until that consent has been obtained.
Jurisdiction to Try Offences Against Administration of Justice
14. Proceedings may be brought for an offence under
sections 15 to 21, if—
(a) the act or omission constituting the offence
charged is alleged to have occurred in Trinidad
and Tobago or on board a ship or aircraft that is
registered in Trinidad and Tobago; or
(b) the person charged is a Trinidad and Tobago
citizen.
Offences Against Administration of Justice
15. (1) Every Judge is liable on conviction on indictment to
imprisonment for fourteen years who, in Trinidad and Tobago or
elsewhere, corruptly accepts or obtains, or agrees or offers to accept
or attempts to obtain, a bribe for himself or any other person in
respect of an act—
(a) done or omitted by that Judge in his judicial
capacity; or
(b) to be done or to be omitted by that Judge in his
judicial capacity.
(2) Every Judge, the Registrar, and the Deputy Registrar
is liable on conviction on indictment to imprisonment for seven
years if, in Trinidad and Tobago or elsewhere, that Judge,
Attorney
General’s
consent to
prosecutions
required.
Jurisdiction in
respect of
offences against
administration
of justice.
Corruption of
Judge.
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Registrar, or Deputy Registrar corruptly accepts or obtains, or
agrees or offers to accept or attempts to obtain, a bribe for
himself or herself or any other person in respect of an act—
(a) done or omitted by that Judge, Registrar or
Deputy Registrar, in his official capacity other
than an act or omission to which subsection (1)
applies; or
(b) to be done or omitted by that Judge, Registrar,
or Deputy Registrar, in his official capacity
other than an act or omission to which
subsection (1) applies.
(3) In this section and in sections 16 and 21—
“Deputy Registrar” means the Deputy Registrar of the ICC;
“Judge” means a Judge of the ICC;
“Registrar” means the Registrar of the ICC.
16. (1) Every person is liable on conviction on
indictment to imprisonment for seven years who, in Trinidad and
Tobago or elsewhere, corruptly gives or offers, or agrees to give,
a bribe to any person with intent to influence a Judge in respect
of any act or omission by that Judge in his judicial capacity.
(2) Every person is liable on conviction on indictment to
imprisonment for five years who, in Trinidad and Tobago or
elsewhere, corruptly gives or offers, or agrees to give a bribe to any
person with intent to influence a Judge or the Registrar or the
Deputy Registrar in respect of an act or omission by that Judge,
Registrar or Deputy Registrar in his official capacity, other than an
act or omission to which subsection (1) applies.
17. (1) Every official of the ICC is liable to imprisonment
on conviction on indictment for seven years who, in Trinidad and
Tobago or elsewhere, corruptly accepts or obtains, or agrees or
offers to accept or attempts to obtain, a bribe for himself or any
other person in respect of an act—
(a) done or omitted by that officer in his official
capacity; or
(b) to be done or omitted by that officer in his
official capacity.
Bribery of
Judge, etc.
Corruption and
bribery of
official of ICC.
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(2) Every person is liable on conviction on
indictment to imprisonment for three years who, in Trinidad
and Tobago or elsewhere, corruptly gives or offers, or agrees to
give, a bribe to any person with intent to influence an official
of the ICC in respect of an act or omission by that officer in his
official capacity.
(3) In this section and in section 21, an official of the
ICC means a person employed under article 44 of the Statute.
18. (1) Every person who gives evidence for the
purposes of a proceeding before the ICC or in connection with a
request made by the ICC that contains an assertion that, if made
in a judicial proceeding in Trinidad and Tobago as evidence on
oath, would be perjury, gives false evidence.
(2) A person is liable on conviction on indictment to
imprisonment for seven years who, in Trinidad and Tobago or
elsewhere, gives false evidence as defined in subsection (1).
(3) Notwithstanding subsection (2), if the false
evidence is given in order to obtain the conviction of a person for
an offence for which the maximum punishment is not less than
three years imprisonment, the punishment may be imprisonment
for a term not exceeding fourteen years.
19. Every person is liable on conviction on indictment to
imprisonment for seven years who, in Trinidad and Tobago or
elsewhere, with intent to mislead the ICC, fabricates evidence by
any means other than the giving of false evidence.
20. Every person is liable on conviction on indictment to
imprisonment for seven years who, in Trinidad and Tobago or
elsewhere, in relation to any proceedings, request, or other
matter referred to in the Statute, conspires to obstruct, prevent,
pervert, or defeat the course of justice.
21. Every person is liable on conviction on indictment to
imprisonment for seven years who, in Trinidad and Tobago or
elsewhere—
(a) dissuades or attempts to dissuade any person,
by threats, force, bribery or other means, from
False evidence.
Fabricating
evidence before
ICC.
Conspiracy to
defeat justice in
ICC.
Interference
with witnesses
or officials.
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giving evidence for the purposes of a
proceeding before the ICC or in connection
with a request made by the ICC;
(b) makes threats or uses force against any Judge,
the Registrar, the Deputy Registrar, or any
official of the ICC with intent to influence or
punish that person, in respect of an act—
(i) done or omitted by that person or any
Judge, the Registrar, the Deputy
Registrar, or any official of the ICC, in
his or her official capacity; or
(ii) to be done or omitted by that person or
any Judge, the Registrar, the Deputy
Registrar, or any official of the ICC, in
his official capacity; or
(c) intentionally attempts in any other way to
obstruct, prevent, pervert, or defeat the course of
justice, in relation to any proceedings, request,
or other matter referred to in the Statute.
Consent to Prosecutions for Offences Against Administration
of Justice
22. (1) Proceedings for an offence under sections 15 to 21
may not be instituted in any Trinidad and Tobago Court without
the consent of the Attorney General.
(2) Notwithstanding (1), a person charged with an offence
under sections 15 to 21 may be arrested, or a warrant for his arrest may
be issued and executed, and the person may be remanded in custody or
on bail, even though the consent of the Attorney General to the
institution of a prosecution for the offence has not been obtained, but no
further proceedings can be taken until that consent has been obtained.
Co-operation Relating to Offences Against Administration of Justice
23. (1) If the ICC makes a request for assistance in an
investigation or proceeding involving an offence against the
administration of justice that request must be dealt with in the
case of a request for—
(a) surrender, in the manner provided in Parts III
and IV and those Parts apply accordingly and
Attorney
General’s
consent to
prosecutions
required.
Co-operation
relating to
offences against
administration
of justice.
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with the necessary modifications, subject to any
contrary provision in the Statute or the Rules;
(b) enforcement of an order requiring reparation or
the payment of a fine or a forfeiture order, in the
manner provided in Parts III and VI and those
Parts apply accordingly and with the necessary
modifications, subject to any contrary provision
in the Statute or the Rules;
(c) transit, in the manner provided in sections 136
to 138 and 150 to 156 and those sections apply
accordingly and with the necessary
modifications, subject to any contrary provision
in the Statute or the Rules; and
(d) any other type of assistance, in the manner
provided in Parts III and V and those Parts and,
if applicable, Part VIII apply accordingly and
with the necessary modifications, subject to any
contrary provision in the statute or the Rules.
(2) In addition to the grounds of refusal or
postponement specified in Parts IV and V, a request for surrender
or other assistance that relates to an offence involving the
administration of justice may be refused if, in the opinion of the
Attorney General, there are exceptional circumstances that
would make it unjust or oppressive to surrender the person or
give the assistance requested.
PART III
GENERAL PROVISIONS RELATING TO REQUESTS
FOR ASSISTANCE
24. (1) This Part applies to a request by the ICC for
assistance that is made under—
(a) Part 9 of the Statute, namely—
(i) the provisional arrest, arrest and
surrender to the ICC of a person in
relation to whom the ICC has issued
an arrest warrant or given a judgment
of conviction;
Requests for
assistance.
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(ii) the identification and whereabouts of
persons or the location of items;
(iii) the taking of evidence, including
testimony under oath and the production
of evidence, expert opinions, and reports
necessary to the ICC;
(iv) the questioning of any person being
investigated or prosecuted;
(v) the service of documents, including
judicial documents;
(vi) facilitating the voluntary appearance of
persons as witnesses or experts before
the ICC;
(vii) the temporary transfer of prisoners;
(viii) the examination of places or sites,
including the exhumation and examination
of grave sites;
(ix) the execution of searches and seizures;
(x) the provision of records and documents,
including official records and documents;
(xi) the protection of victims and witnesses
and the preservation of evidence;
(xii) 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
(xiii) any other type of assistance that is not
prohibited by the law of Trinidad and
Tobago, with a view to facilitating the
investigation and prosecution of crimes
within the jurisdiction of the ICC; or
(b) any of the following articles of the Statute:
(i) article 19(8), which relates to various
steps that the Prosecutor may take with
the authority of the ICC;
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(ii) article 56, which relates to various
measures that can be taken by the Pre-
Trial Chamber;
(iii) article 64, which relates to various
measures that can be taken by the Trial
Chamber;
(iv) article 76, which relates to the imposition
of sentence by the Trial Chamber; or
(v) article 109 of the Statute, which relates to
the enforcement of fines and forfeiture
measures.
(2) Nothing in this section—
(a) limits the type of assistance that the ICC may
request under the Statute or the Rules, whether
in relation to the provision of information or
otherwise; or
(b) prevents the provision of assistance to the ICC
otherwise than under this Act, including
assistance of an informal nature.
25. (1) A request for assistance must be made through an
authorised channel and—
(a) in the case of a request to which Part IV applies,
be transmitted to the Attorney General; or
(b) in any other case, be transmitted to the Attorney
General or a person authorised by the Attorney
General to receive requests.
(2) For the purposes of subsection (1) and section 26(1),
an authorised channel is—
(a) the diplomatic channel to the Minister to whom
responsibility for foreign affairs is assigned; or
(b) any other appropriate channel that Trinidad and
Tobago may designate at the time it ratifies the
Statute or at any subsequent time in accordance
with the Rules.
Requests to be
made through
authorised
channel.
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(3) This section is subject to section 26 which relates to
urgent requests.
26. (1) In urgent cases a request for assistance, including a
request for provisional arrest, may be—
(a) made using any medium capable of delivering a
written record; or
(b) transmitted through the International Criminal
Police Organisation or any other appropriate
regional organisation, instead of through an
authorised channel.
(2) If a request is made or transmitted in the first
instance in the manner specified in subsection (1), it must be
followed as soon as practicable by a formal request transmitted
in the manner specified in section 25.
27. (1) If the ICC makes a request for assistance, the
request must be dealt with in accordance with the relevant
procedure under the law of Trinidad and Tobago, as provided in
this Act.
(2) If the request for assistance specifies that it should
be executed in a particular manner that is not prohibited by
Trinidad and Tobago law or by using a particular procedure that
is not prohibited by Trinidad and Tobago law, the Attorney
General, as the case may be, must use his best endeavours to
ensure that the request is executed in that manner or using that
procedure, as the case may be.
28. (1) The Attorney General shall consult with the ICC,
without delay, if—
(a) a request for assistance is received from the ICC
that does not contain or is not accompanied by
the appropriate information or the appropriate
documents specified in article 87, 91, 92, 93, or
96 of the Statute;
(b) the ICC has not provided sufficient information
for a request for assistance to be executed;
Urgent
requests.
Execution of
requests.
Consultation.
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(c) in the case of a request for surrender—
(i) the person sought cannot be located in
Trinidad and Tobago;
(ii) it appears that the person in Trinidad and
Tobago is clearly not the person named in
the warrant or judgment, as the case may be;
(d) execution of a request for assistance in its
current form would require the breach of an
existing treaty obligation to another State; or
(e) for any other reason there are or may be
difficulties with the execution of a request for
assistance received from the ICC.
(2) Before refusing any request for assistance, the
Attorney General shall consult with the ICC to ascertain whether
the assistance sought could be provided—
(a) subject to conditions; or
(b) at a later date or in an alternative manner.
(3) Without limiting the types of conditions under
which assistance may be provided, the Attorney General may
agree to the transmission of documents or information to the
Prosecutor on a confidential basis, on the condition that the
Prosecutor will use them solely for the purpose of generating
new evidence.
(4) If the Attorney General transmits documents or
information subject to the condition specified in subsection (3),
the Attorney General may subsequently consent to the disclosure
of such documents or information for use as evidence under the
provisions of Parts 5 and 6 of the Statute and in accordance with
the Rules.
29. (1) A request for assistance and any documents
supporting the request shall be kept confidential by the Trinidad
and Tobago authorities who deal with the request, except to the
extent that the disclosure is necessary for execution of the request.
Confidentiality
of request.
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(2) If the ICC requests that particular information that is
made available with a request for assistance 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, the Trinidad and Tobago authorities shall use their
best endeavours to give effect to that request.
(3) In this section, the Trinidad and Tobago authorities are—
(a) the Attorney General;
(b) every police officer;
(c) every prison officer; and
(d) every employee of or contractor engaged by a
Trinidad and Tobago agency that is authorised
to deal with the request.
(4) Subsection (2) does not limit subsection (1).
30. (1) The Attorney General shall notify the ICC, without
delay, of his response to a request for assistance and of the
outcome of any action that has been taken in relation to it.
(2) If the Attorney General decides, in accordance with
the Statute and this Act, to refuse or postpone the assistance
requested, in whole or in part, the reasons for the decision shall
be set out in the notice to the ICC.
(3) If the request for assistance cannot be executed for
any other reason, the reasons for the inability or failure to
execute the request shall be set out in the notice to the ICC.
(4) In the case of an urgent request for assistance, any
documents or evidence produced in response shall, at the request
of the ICC, be sent urgently to it.
(5) Documents or evidence provided or produced in
response to a request for assistance from the ICC must be
transmitted to the ICC in their original language and form.
Official Capacity of Suspect or Accused no Bar to Request
31. (1) The existence of any immunity or special
procedural rule attaching to the official capacity of any person is
not a ground for—
(a) refusing or postponing the execution of a request
for surrender or other assistance by the ICC;
Response to be
sent to ICC.
Official
capacity of
person no bar
to request.
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(b) holding that a person is ineligible for
surrender, transfer, or removal to the ICC or
another State under this Act; or
(c) holding that a person is not obliged to provide
the assistance sought in a request by the ICC.
(2) Subsection (1) applies subject to sections 66 and
120, but notwithstanding any other enactment or rule of law.
PART IV
ARREST AND SURRENDER OF PERSON TO ICC
Request from ICC for Arrest and Surrender
32. (1) This Part applies to a request made by the ICC under
article 89(1) of the Statute for the arrest and surrender from
Trinidad and Tobago of a person—
(a) in respect of whom the Pre-Trial Chamber has
issued a warrant of arrest under article 58 or 60
of the Statute for an international crime; or
(b) who has been convicted by the ICC of an
international crime.
(2) This Part applies to a request made under article 92
of the Statute for the provisional arrest of a person accused or
convicted of an international crime.
(3) The following provisions of this Part apply subject
to sections 55 to 66, which deal with restrictions on surrender
and the execution of a request for surrender:
(a) sections 33 to 35, which deal with arrest where
a request for surrender is received;
(b) sections 36 to 38, which deal with provisional
arrest in urgent cases;
(c) sections 39 to 42, which deal with remand and
bail;
(d) sections 43 to 46, which deal with eligibility for
surrender; and
(e) sections 47 to 54, which deal with surrender and
temporary surrender.
Request for
arrest and
surrender.
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Arrest where Request for Surrender Received
33. (1) If a request for surrender is received, other than a
request for provisional arrest referred to in section 32(2), the
Attorney General may notify a High Court Judge in writing that
it has been made and request that the Judge issue a warrant for
the arrest of the person whose surrender is sought.
(2) If a notice is sent to a Judge under subsection (1),
the Attorney General must also send to the Judge a copy of the
request and supporting documents.
(3) The Attorney General may, if he thinks fit, refuse to
notify a High Court Judge under this section.
34. After receiving a request under section 33, the High
Court Judge shall issue a warrant in the prescribed form for the
arrest of the person if the Judge is satisfied on the basis of
information presented to him that—
(a) the person is or is suspected of being in Trinidad
and Tobago or may come to Trinidad and
Tobago; and
(b) there are reasonable grounds to believe that that
person is the person to whom the request for
surrender from the ICC relates.
35. (1) The Attorney General may, at any time, by notice in
writing, order the cancellation of the warrant.
(2) If the Attorney General orders the cancellation of a
warrant under subsection (1), the warrant ceases to have effect
and any person arrested under the warrant must be released,
unless the person is otherwise liable to be detained in custody.
Provisional Arrest in Urgent Cases
36. (1) A High Court Judge may issue a provisional
warrant for the arrest of a person if the Judge is satisfied on the
basis of the information presented to him—
(a) a warrant for the arrest of a person has been
issued by the ICC or, in the case of a convicted
person, a judgment of conviction has been
given in relation to an international crime;
Attorney
General to
request issue of
arrest warrant.
Issue of arrest
warrant.
Cancellation of
warrant.
Provisional
arrest warrant
may be issued.
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(b) the person named in the warrant or judgment is
or is suspected of being in Trinidad and Tobago
or may come to Trinidad and Tobago; and
(c) it is necessary or desirable for an arrest warrant
to be issued urgently.
(2) A warrant may be issued under this section even
though no request for surrender has yet been made or received
from the ICC.
37. (1) If a High Court Judge issues a provisional arrest
warrant under section 36, the applicant for the warrant shall report
the issue of the warrant to the Attorney General without delay.
(2) The applicant shall include in the report to the
Attorney General, a copy of the warrant issued by the ICC, or the
judgment of conviction, as applicable, and the other documentary
evidence that the applicant produced to the Judge.
(3) On receipt of the report under subsection (1), the
Attorney General may, if he thinks fit, order that the proceedings
be discontinued.
(4) If the Attorney General orders that the proceedings
be discontinued, he may cancel any warrant of arrest and order
the discharge of any person arrested under the warrant.
(5) The Attorney General shall notify the High Court of
any action taken under subsection (3) or (4).
38. (1) If a person has been arrested on a provisional arrest
warrant issued under section 36, the following provisions apply:
(a) the hearing of the proceedings must not proceed
until the High Court receives from the Attorney
General a notice in writing stating that a request
for the surrender of the person has been
transmitted to the Attorney General in the
manner specified in section 25;
(b) pending the receipt of the notice from the
Attorney General, the proceedings may from
time to time be adjourned;
Notice to be
given to
Attorney
General.
Procedure
where
provisional
arrest warrant
issued.
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(c) the High Court shall set a date by which the
notice is to be transmitted to it, which must be a
reasonable time having regard to—
(i) any provision in the Rules that prescribes
the maximum period for transmission by
the ICC of the request and supporting
documents to the requested State;
(ii) if there is no such provision, the time it is
likely to take for the ICC to prepare and
transmit the request and supporting
documents to Trinidad and Tobago; and
(iii) the time it is likely to take for the
Minister to consider the request after
receipt and for the notice to be transmitted
to the High Court; and
(d) if the High Court does not receive the notice
within the time fixed by the High Court under
paragraph (c), and does not extend that time
under subsection (2), the High Court shall
discharge the person.
(2) The High Court may, from time to time, in its
discretion, extend any time fixed by it under subsection (1)(c).
Remand and Bail
39. (1) A person arrested on a warrant issued under section 34
or 36 shall, unless sooner discharged, be brought before the Court
as soon as possible.
(2) The person—
(a) is not entitled to bail as of right; and
(b) may not go at large without bail.
(3) If the High Court remands the person on bail, it may
impose any conditions of bail that it thinks fit.
(4) Without limiting the other factors that may be taken
into account in making a decision to grant bail, the High Court
shall have regard to the following:
(a) the gravity of the alleged crimes;
Procedure
following
arrest.
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(b) whether there are urgent and exceptional
circumstances that favour the grant of bail; and
(c) whether necessary safeguards exist to ensure that
Trinidad and Tobago can fulfill its duty under the
Statute to surrender the person to the ICC.
(5) Without limiting the other factors that may be taken
into account in making a decision to grant bail, the High Court
may not consider whether any warrant of arrest or judgment issued
by the ICC was properly issued in accordance with the Statute.
40. (1) If an application for bail is made, the Attorney
General shall notify the ICC which may make
recommendations to the Attorney General that shall be conveyed
to the High Court that is considering the application.
(2) Before rendering its decision, the High Court shall
consider any recommendations that the ICC has made,
including any recommendations on measures to prevent the
escape of the person.
(3) If the person is granted bail, the Attorney General
shall, if the ICC requests, provide periodic reports to the ICC on
the person’s bail status.
(4) This section applies with any necessary
modifications to any bail application made during the period
until the person is surrendered to the ICC or discharged
according to law.
41. In proceedings under this Part, except as expressly
provided in this Act or in Regulations made under section 170 or
180, the High Court has the same jurisdiction and powers, and
shall conduct the proceedings in the same manner, as if the
person were charged with a summary offence alleged to have
been committed within the jurisdiction of Trinidad and Tobago.
42. (1) This section applies if the High Court orders the
detention of a person at any time under this Part.
Procedure for
bail.
Powers of High
Court.
Detention in
place other than
prison.
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(2) If the High Court concludes that detaining the
person in prison would risk the person’s life or health or be
undesirable for any reason, the High Court may order that the
person be held in custody—
(a) at the place where the person is for the time
being; or
(b) at any other place that the Court considers
appropriate, having regard to the risk or reason
involved.
(3) The person may be held as specified in
subsection (2) until—
(a) the person can be detained in a prison without
risk to life or health;
(b) the reason for not detaining him or her in prison
no longer applies; or
(c) he or she is surrendered or discharged according
to law.
(4) In making the order specified in subsection (2), the
High Court shall have regard to any recommendations that the
ICC may make regarding the place of the person’s detention.
Eligibility for Surrender
43. (1) If a person is brought before a Court under this Part,
the Court shall determine whether the person is eligible for
surrender in relation to the international crime for which
surrender is sought.
(2) Subsection (1) applies subject to sections 38 and 45.
(3) The person is eligible for surrender if—
(a) a warrant for the arrest of the person issued by
the ICC or a judgment of conviction for an
international crime given by the ICC has been
produced to the Court;
(b) the Court is satisfied that the person is the
person to whom the warrant or judgment relates;
(c) the Court is satisfied that the person was arrested
in accordance with the proper process as
provided in article 59(2)(b) of the Statute; and
Determination
of eligibility for
surrender.
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(d) the Court is satisfied that the person’s rights
were respected as provided in article 59(2)(c) of
the Statute.
(4) Neither subsection (3)(c) nor subsection (3)(d)
applies unless the person puts the matter at issue.
(5) Notwithstanding subsection (3), the person is not
eligible for surrender if he satisfies the Court that a
mandatory restriction on the surrender of the person specified
in section 55(1), applies.
(6) Notwithstanding subsection (3), in the proceedings
under this section—
(a) the person to whom the proceedings relate is not
entitled to adduce, and the Court is not entitled
to receive evidence to contradict an allegation
that the person has engaged in conduct that
constitutes the offence for which the surrender
is sought; and
(b) in the case of a person accused of an offence,
nothing in this section requires evidence to be
produced or given at the hearing to establish,
according to the law of Trinidad and Tobago, that
the trial of the person would be justified if the
conduct constituting the offence had occurred
within the jurisdiction of Trinidad and Tobago.
44. (1) The Court may adjourn the hearing for such period as
it considers reasonable to allow a deficiency to be remedied if—
(a) a document containing a deficiency or
deficiencies of relevance to the proceedings are
produced; and
(b) the Court considers the deficiency to be of a
minor nature.
(2) Subsection (1) does not limit the circumstances in
which the Court may adjourn a hearing.
45. (1) A person may at any time notify the Court that he
consents to being surrendered to the ICC for the international
crime for which surrender is sought.
Adjournment of
hearing.
Surrender by
consent.
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(2) The High Court may accept the notification of
consent under subsection (1), if—
(a) the person is before the Court when notification
of the consent to surrender is given;
(b) the person has been legally represented in the
proceedings; and
(c) the Court is satisfied that the person has freely
consented to the surrender in full knowledge of
its consequences.
(3) Nothing in this section prevents a person, in respect
of whom a determination of eligibility for surrender is made by
the Court under section 43, from subsequently notifying the
Attorney General that the person consented to surrender.
(4) To avoid doubt—
(a) a person arrested under a provisional warrant
may consent to surrender before a request for
surrender is received, in which case the Attorney
General may make a surrender order as if a
request for surrender had been received; and
(b) if paragraph (a) applies, section 38(1)(a) does
not apply.
46. (1) This section applies if—
(a) the Court has determined in accordance with
section 43 that a person is eligible for surrender; or
(b) a person has consented to surrender to the ICC
in accordance with section 45.
(2) If this section applies, the Court shall—
(a) issue a warrant for the detention of the person in
a prison or other place authorised in accordance
with section 42 of this Act, pending the
surrender of the person to the ICC or the
person’s discharge according to law;
Procedure
following
determination
on eligibility or
consent to
surrender.
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(b) send to the Minister a copy of the warrant of
detention and such report on the case as the
Court thinks fit;
(c) inform a person to whom subsection (1)(a)
applies that—
(i) subject to section 70, the person will not
be surrendered until the expiration of
fifteen days after the date of the issue of
the warrant;
(ii) during that time the person has the right
to make an application for a writ of
habeas corpus; and
(iii) the person has the right to lodge an appeal
under section 67; and
(d) inform a person to whom subsection (1) applies
that the Attorney General is required to
determine whether to issue a surrender order
before the person can be surrendered to the
ICC; and
(e) inform the person that if a surrender order is
made and he is not removed within two months,
he may apply to be discharged under section 74.
(3) If the Court issues a warrant under subsection (2), the
Court may grant bail to the person in accordance with section 39.
(4) If the Court is not satisfied that the person is eligible
for surrender, it shall discharge the person, unless under section 69
it orders that the person continue to be detained or issues a warrant
for the arrest and detention of the person, pending the
determination of an appeal under section 67.
Surrender and Temporary Surrender
47. (1) If the Court issues a warrant for the detention of a
person under section 46, the Attorney General shall determine
whether to order that the person be surrendered.
(2) The Attorney General shall make a surrender order
in respect of the person unless—
(a) he is satisfied that surrender of the person must
be refused because a mandatory restriction on
surrender specified in section 55(1) applies;
Attorney
General must
determine
whether person
be surrendered.
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(b) he is satisfied that one of the discretionary
restrictions on surrender specified in section 55(2)
applies and that it is appropriate in the
circumstances that surrender be refused;
(c) he postpones the execution of a request for
surrender in accordance with section 56; or
(d) the Minister makes a temporary surrender order
under section 49.
(3) The Attorney General must not make a
surrender order in respect of a person until the later of the
following times:
(a) until the expiration of fifteen days after the date
of the issue of the warrant of detention of that
person under section 46(2)(a); or
(b) if an appeal, or an application for review or
habeas corpus in respect of a determination
under this Act, or any appeal from such an
appeal or application, is pending, until after
the date that the proceedings are finally
determined and the result is that the person is
eligible to be surrendered.
(4) Nothing in subsection (3) applies to—
(a) a person who has consented to surrender under
section 45, whether before the Court or
subsequently by notice to the Attorney General; or
(b) a person to whom section 43 applies but who
has, in accordance with section 70, notified the
Minister that he has waived—
(i) the right to make an application for a writ
of habeas corpus within fifteen days after
the date of the issue of the warrant; and
(ii) the right, in relation to every international
crime for which the Court has determined
that the person is eligible to be
surrendered, to lodge an appeal under
section 67; or
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(c) a person whom the Court determines is eligible
for surrender for two or more international
crimes and who, under section 70, has waived—
(i) the right to make an application for
habeas corpus within fifteen days after
the date of the issue of the warrant; and
(ii) the right, in relation to only one or some
of those international crimes, to lodge an
appeal under section 67,
if the ICC withdraws its request for the surrender of the person
for the international crime to which the waiver does not relate.
(5) If the Attorney General makes a surrender order in
respect of a person described in section 47(2), the Attorney
General may arrange for any approvals, authorities and
permissions that may be needed to be obtained before surrender,
including the variation, cancellation, or suspension of the
sentence, or of any conditions of the sentence.
(6) Subject to section 48, once the Attorney General has
made a surrender order, he must use his best endeavours to
ensure that the person is delivered to the ICC without delay in
accordance with this Act and any applicable Rules.
48. (1) This section applies if the Attorney General has
determined under section 47 that in all other respects it is
appropriate to make a surrender order, but the person is liable to be
detained in a prison because of a sentence of imprisonment imposed
for a different offence against the law of Trinidad and Tobago.
(2) If this section applies, the Minister may, after
consultation with the ICC, instead of making a surrender order that
has immediate effect, or a temporary surrender order under section 49,
make an order for the surrender of the person that is to come into
effect when the person ceases to be liable to be detained.
49. (1) This section applies if—
(a) the request by the ICC for surrender relates to
an international crime of which the person is
accused;
Surrender order
may take effect
at later date.
Temporary
surrender to
ICC.
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(b) the Minister has determined under section 47 that
in all other respects it is appropriate to make a
surrender order but the person sought is either—
(i) the subject of proceedings for a different
offence against Trinidad and Tobago law
that has not been finally disposed of; or
(ii) liable to be detained in a prison because
of a sentence of imprisonment imposed
for a different offence against the law of
Trinidad and Tobago; and
(c) after consultation by the Attorney General with
the ICC, the ICC requests that the person be
surrendered temporarily.
(2) If this section applies, the Minister may make a
temporary surrender order in respect of the person.
(3) Before making a temporary surrender order, the
Attorney General may seek undertakings from the ICC relating
to one or more of the following matters:
(a) the return of the person to Trinidad and Tobago;
(b) the custody of the person while travelling to and
from and while in, the ICC’s jurisdiction; and
(c) such other matters, if any, that the Attorney
General thinks appropriate.
50. (1) The Attorney General shall review whether it is
appropriate for a person who has been surrendered to the ICC
under a temporary surrender order to be returned to Trinidad and
Tobago in accordance with undertakings received from the ICC
if the person is convicted by the ICC of an international crime
and sentenced to imprisonment.
(2) The Attorney General may determine that he no
longer requires the undertaking relating to return, to be complied
with and if so, shall inform the ICC without delay.
51. (1) The Attorney General may make a surrender order
in relation to a person who was surrendered to the ICC under a
temporary surrender order if—
(a) the person has been convicted by the ICC of an
international crime and sentenced to imprisonment;
Decision on
return to
Trinidad and
Tobago after
trial.
Request for
return to ICC
after temporary
surrender.
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(b) the person is returned to Trinidad and Tobago in
order for the Trinidad and Tobago proceedings
or sentence to be completed; and
(c) the ICC makes a request at any time before
the person is no longer the subject of
Trinidad and Tobago proceedings or ceases
to be liable to be detained in a Trinidad and
Tobago prison, that, when he is no longer the
subject of proceedings or ceases to be so
liable, the person be surrendered to serve the
sentence imposed by the ICC.
(2) Before making an order under subsection (1), the
Attorney General shall determine in accordance with section 47(2),
that the person is to be surrendered.
(3) If a surrender order is made under this section, the
order takes effect on the same day that the person ceases to be
subject to the Trinidad and Tobago proceedings or ceases to be
liable to be detained in a Trinidad and Tobago prison.
52. (1) If a person who is subject to a sentence of
imprisonment is released from a Trinidad and Tobago prison
under a surrender order made under section 47 or a
temporary surrender order made under section 49, the person
is to be treated, while in custody in connection with the
request or the crime to which the request related, as the case
may be including custody outside Trinidad and Tobago, as
being in custody for the purposes of the Trinidad and Tobago
sentence, which continues to run.
(2) If, while a person is within the jurisdiction of the ICC
under a temporary surrender order or surrender order, the person
ceases to be liable to be detained in a Trinidad and Tobago prison, the
Attorney General shall inform the ICC that any undertakings relating
to custody referred to in section 49(3)(a) and section 49(3)(b), no
longer need to be complied with.
(3) Nothing in this section affects the ICC’s power to
direct that any sentence of imprisonment that it imposes is to be
cumulative on a sentence imposed under Trinidad and Tobago law.
Trinidad and
Tobago
sentence
continues to
run.
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53. A surrender order made under section 47 or a temporary
surrender order made under section 49 must be in the prescribed
form, if any, and shall—
(a) specify all the international crimes in relation to
which the person is being surrendered;
(b) either—
(i) require the person in whose custody the
person to be surrendered is being held, if
the person is being held in custody to
release the person to be surrendered into
the custody of a member of the police
service, or a prison officer; or
(ii) if the person to be surrendered is on bail,
authorise any member of the police to
take the person into custody;
(c) authorise the police officer, or prison officer, as
the case may be, to transport the person in
custody and, if necessary or convenient, to
detain the person in custody, for the purpose of
enabling him to be placed in the custody of a
person who is, in the opinion of the Attorney
General, duly authorised to receive the person
to be surrendered in the name of and on behalf
of the ICC; and
(d) authorise the duly authorised person referred to
in paragraph (c) to take the person to be
surrendered into custody and transport him out
of Trinidad and Tobago as soon as practicable to
the ICC to be dealt with according to law.
54. (1) If a request for surrender relates to a convicted
person who has escaped from custody and the ICC directs, under
article 111 of the Statute, that the person be delivered to the State
in which he or she was serving the sentence or to any other State
designated by the ICC, the Attorney General shall arrange for the
person to be delivered to the State specified in the direction.
(2) In any case in which subsection (1) applies, the
surrender order may specify that the person be surrendered into
the custody of duly authorised representatives of the State
specified in the direction.
Form and
execution of
surrender order
or temporary
surrender order.
Surrender to
State of
enforcement.
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Restrictions on Surrender
55. (1) The Attorney General shall refuse a request by the
ICC for the surrender of a person if—
(a) there has been previous proceedings against the
person and section 57(4) applies;
(b) the ICC determines that the case is inadmissible
and section 59(3) or 60(2) applies; or
(c) section 66(3) applies.
(2) The Minister may refuse a request by the ICC for
the surrender of a person if—
(a) 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) applies; or
(b) there are competing requests from the ICC and
a State that is not a party to the Statute relating
to different conduct and section 64(3) applies.
(3) To avoid doubt the only grounds on which
surrender to the ICC may be refused are those specified in this
section and if applicable, section 23(2) which relates to offences
involving the administration of justice.
56. (1) The Attorney General may postpone the
execution of a request for surrender under this Part at any time
before the person sought is surrendered if—
(a) a ruling on admissibility of the kind specified in
section 57(1), or 59(1) or 60 is pending before
the ICC;
(b) the request would interfere with an
investigation or prosecution for a different
offence against Trinidad and Tobago law, as
provided in section 58; or
(c) a request of the kind referred to in section 66(1)(c)
is made to the ICC.
(2) Even if a case is one to which subsection (1) applies,
the Attorney General may decide not to postpone the execution of
the request; and, in that event, the Attorney General may take
such steps under this Part as may be appropriate in the
Refusal of
surrender.
Postponement
of execution of
request for
surrender.
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circumstances, including making a surrender order with
immediate effect under section 47 or with effect at a later date
under section 48 or a temporary surrender order under section 49.
(3) If the Minister postpones the execution of the
request, the postponement may be for a reasonable time and may,
if the Attorney General considers it desirable, be extended from
time to time.
(4) A decision by the Attorney General to postpone the
execution of a request—
(a) does not limit or affect—
(i) the Court’s ability to accept notification
of consent to the surrender; or
(ii) the ability to continue to detain a
person under any warrant issued under
this Part; and
(b) does not affect the validity of any act that has
been done or any warrant or order made under
this Part before the decision was made.
(5) If no decision on the execution of the request for
surrender is made within six months after the date of the Attorney
General’s decision to postpone the execution of the request, the
person may apply to a Judge of the High Court to be discharged.
(6) If an application to be discharged is made under
subsection (5), the Judge may, on proof that reasonable notice of
the intention to make the application has been given to the Attorney
General, unless sufficient cause is shown against the discharge—
(a) discharge any order made under this Act; or
(b) order the discharge of the person from the place
where the person is detained, if the person is
not liable to be detained under any other order
for detention.
57. (1) This section applies if the person whose
surrender is sought alleges that—
(a) the case is one to which article 20(1) of the
Statute applies because it relates to conduct that
formed the basis of crimes for which the person
has been convicted or acquitted by the ICC; or
Previous
proceedings
against person
sought.
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(b) the person has been tried by another Court for
conduct also prescribed under article 6, 7 or 8 of
the Statute and the case is not one to which
paragraphs (a) and (b) of article 20(3) of the
Statute applies.
(2) If this section applies, the Attorney General shall
immediately consult with the ICC to determine if there has been
a relevant ruling on admissibility under the Statute.
(3) If the ICC has ruled that the case is admissible,
surrender cannot be refused on the grounds that there have been
previous proceedings.
(4) If the ICC has ruled that the case is
inadmissible under article 20 of the Statute, surrender must be
refused on the ground that there have been previous proceedings.
(5) If an admissibility ruling is pending, the Attorney
General may postpone the execution of a request until the ICC
has made a determination on admissibility.
58. (1) This section applies if the ICC makes a request for
surrender that would interfere with an investigation or
proceeding in Trinidad and Tobago involving different conduct.
(2) If this section applies, the Attorney General may,
after consultation with the ICC—
(a) proceed with the execution of the request in
accordance with section 56(2), notwithstanding
the Trinidad and Tobago investigation or
proceedings; or
(b) postpone the execution of the request until the
Trinidad and Tobago investigation or
proceedings have been finally disposed of.
(3) Nothing in this section limits or affects section 48
which allows the Attorney General to make a surrender order
that comes into force at a later date if a person is serving a
sentence for a different offence against Trinidad and Tobago law.
Ongoing
Trinidad and
Tobago
investigation or
proceedings
involving
different
conduct.
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59. (1) This section applies if—
(a) the ICC makes a request for surrender;
(b) the request relates to conduct that would
constitute an offence under Trinidad and
Tobago law;
(c) either—
(i) the conduct is being investigated or
prosecuted in Trinidad and Tobago; or
(ii) the conduct had been investigated in
Trinidad and Tobago and a decision was
made not to prosecute the person sought,
that decision not being due to the
unwillingness or genuine inability to
prosecute; and
(d) a challenge to the admissibility of the case is being
or has been made to the ICC under article 19(2)(b)
of the Statute.
(2) If this section applies, the Attorney General may
postpone the execution of the request for surrender until the ICC
has made its determination on admissibility.
(3) If the ICC determines that the case is
inadmissible, surrender shall be refused.
60. (1) If the ICC is considering an admissibility challenge
under article 18 or 19 of the Statute, other than a challenge of the
kind referred to in section 57 or 59, the Attorney General may
postpone the execution of a request under this Part pending a
determination by the ICC.
(2) If the ICC determines that the case is
inadmissible, surrender must be refused.
(3) If the ICC determines that the case is admissible, and
there is no other ground for refusing or postponing the request,
the request must continue to be dealt with under this Part.
61. If a request for surrender of a person is received from the
ICC and one or more States also request the extradition of the
Person being
prosecuted in
Trinidad and
Tobago for
same conduct.
Other
challenges to
admissibility.
Request from
ICC and other
State relating to
same conduct.
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person for the same conduct that forms the basis of the crime for
which the ICC seeks the person’s surrender, the Attorney
General shall—
(a) notify the ICC and the requesting State of that
fact; and
(b) determine, in accordance with section 62 or 63,
whether the person is to be surrendered to the
ICC or to the requesting State.
62. (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 19 of the
Statute, made a determination that the case in
respect of which surrender is sought is
admissible and that the 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 no person may be
surrendered under that Act unless the ICC makes its decision on
admissibility and determines that the case is inadmissible.
63. (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) Trinidad and Tobago is under an international
obligation to extradite the person to the
requesting State; and
(b) the ICC has determined under articles 18 and 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) Trinidad and Tobago is not under an
international obligation to extradite the person
to the requesting State; and
Procedure
where
competing
request from
State Party.
Procedure
where
competing
request from
non-State Party.
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(b) the ICC has not yet determined under articles 18
and 19 of the Statute that the case is admissible.
(3) Notwithstanding subsection (2), for the
purposes of this Act, no person may be surrendered under the
Trinidad and Tobago law relating to extradition, 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 Trinidad and Tobago is under an
international obligation to extradite the person to the
requesting State, the Attorney General shall determine
whether to surrender the person to the ICC or extradite the
person to the requesting State.
(5) In making the determination under subsection (4),
the Attorney General shall consider all the relevant factors
including, without limitation—
(a) the respective dates of the requests;
(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.
64. (1) If a request for surrender of a person is received
from the ICC and a request for the extradition of that person is
received from one or more States for conduct other than that
which constitutes the crime for which the ICC seeks the
person’s surrender, the Attorney General shall determine
whether the person is to be surrendered to the ICC or to the
requesting State.
(2) If Trinidad and Tobago is not under an existing
international obligation to extradite the person to the requesting
State, priority must be given to the request from the ICC.
(3) If Trinidad and Tobago is under an existing
international obligation to extradite the person to the requesting
State, the Attorney General shall determine whether to surrender the
person to the ICC or to extradite the person to the requesting State.
Request from
ICC and other
State relating to
different
conduct.
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(4) In making the determination under subsection (3), the
Attorney General shall consider all the relevant factors, including,
without limitation, those matters specified in section 63 of this Act
but must give special consideration to the relative seriousness of
the offences for which surrender is sought.
65. (1) If, following notification under article 90 of the
Statute, the ICC has determined that a case is inadmissible and
the Minister subsequently refuses extradition of the person to the
requesting State, the Attorney General shall notify the ICC of
this decision.
(2) The obligation in this section is in addition to the
requirement in section 30 for the Attorney General to respond
formally to the request from the ICC.
66. (1) This section applies, if—
(a) the ICC makes a request for surrender;
(b) the ICC has not previously made a final
determination on whether or not article 98 of
the Statute applies to that request; and
(c) a request is made to the ICC to determine
whether or not article 98 of the Statute applies
to the request for surrender.
(2) If this section applies, the Attorney General may
postpone the request for surrender until the ICC advises whether
or not it intends to proceed with the request for surrender.
(3) If the ICC advises that it does not intend to proceed
with the request, surrender must be refused.
(4) If the ICC advises that it intends to proceed with the
request for surrender, and there is no other ground for refusing or
postponing the request for surrender, the request must continue
to be dealt with under this Part.
Appeals against Determinations of Eligibility for Surrender
67. (1) This section applies if a Court determines under
section 43 that a person is or is not eligible for surrender in
relation to any crime for which surrender is sought, and either
party considers the determination is erroneous in a point of law.
Notification of
decision on
extradition to
requesting
State.
Conflict with
obligations to
another State.
Appeal on
question of law
only by way of
case stated.
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(2) If this section applies, the party may appeal against
the determination to the Court of Appeal on a question of law only.
(3) To lodge an appeal the party shall, within fifteen
days after the determination, file in the office of the court that
made the determination a notice of appeal in the prescribed form.
68. The Rules of the Supreme Court relating to appeals to
the Court of Appeal shall, with all necessary modifications,
apply to an appeal under section 67.
69. (1) The High Court may order that the person who is the
subject of the determination continue to be detained or, as the
case may be, issue a warrant for the arrest and detention of the
person, pending the determination of the appeal if—
(a) the High Court makes a determination under
section 43; and
(b) immediately after the High Court makes the
determination, either party informs the Court
that the party intends to appeal against the
determination.
(2) If a person is detained under an order made under
this section or is arrested and detained under a warrant issued
under this section, sections 39 to 42 shall apply to the detention
of the person with any necessary modifications as if the appeal
proceedings were proceedings under section 43 to determine
whether or not the person is eligible for surrender.
70. Without limiting section 45, a person whose
surrender is sought may, by a waiver in the prescribed form,
waive the following rights:
(a) the right to make an application for a writ of
habeas corpus within fifteen days after the
issue of a warrant of detention; and
(b) the right, in relation to any international crime
or crimes for which the High Court has
determined that the person is eligible for
surrender, to lodge an appeal under this Part.
Rules of
appeal.
Custody
pending
determination
of appeal.
Waiver of
rights to apply
for habeas
corpus or to
lodge appeal.
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71. (1) The Court of Appeal shall hear and determine
questions of law arising from any case transmitted to it, and do
one or more of the following things:
(a) reverse, confirm, or amend the determination in
respect of which the case has been stated;
(b) remit the determination to the High Court for
reconsideration together with the opinion of the
Court of Appeal on the determination;
(c) remit the determination to the High Court with
a direction that the proceedings to determine
whether the person is eligible for surrender be
reheard; or
(d) make any other order in relation to the
determination that it thinks fit.
(2) In hearing and determining the question or
questions of law arising on any case transmitted to it, the Court
of Appeal—
(a) shall not have regard to any evidence of a fact
or opinion that was not before the High Court
when it made the determination appealed
against; and
(b) may in the same proceeding hear and determine
any application for a writ of habeas corpus
made in respect of the detention of the person
whose surrender is sought.
72. (1) If the appeal is against a determination that a person
is eligible for surrender, and the Court of Appeal reverses the
determination in respect of which the case has been stated, the
Court of Appeal shall either—
(a) discharge the person; or
(b) remit the determination to the High Court
with a direction that the proceedings to
determine whether the person is eligible for
surrender be reheard.
(2) If the appeal is against a determination that a person
is eligible for surrender in respect of two or more international
crimes, and the Court of Appeal determines that the
Powers of
Court of
Appeal.
Further
provisions
relating to
powers of
Court of
Appeal.
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determination includes an error of law that relates to only one or
some of those international crimes, the Court of Appeal may
amend the determination and—
(a) discharge the person in respect of that
international crime or those international
crimes; or
(b) remit the determination to the High Court with
a direction that the proceedings to determine
whether the person is eligible for surrender be
reheard in respect of that international crime or
those international crimes.
(3) Notwithstanding subsections (1) and (2), if an
appeal is against a determination that a person is eligible for
surrender, and the Court of Appeal determines that there has been
an error of law, it may nevertheless decline to reverse or amend
the determination in respect of which the case has been stated if
it considers that no substantial wrong or miscarriage of justice
has occurred and that the determination ought to be upheld.
(4) If the appeal is against a determination that a person
is not eligible for surrender, and the Court of Appeal determines
that the determination includes an error of law, the Court of
Appeal may—
(a) exercise the powers of the High Court under
section 46, although subsection (2)(c) of that
section does not apply; or
(b) if it remits the determination to the High Court,
issue a warrant for the arrest and detention of
the person pending the High Court’s
reconsideration of the determination or
rehearing of the proceedings to determine
whether the person is eligible for surrender; and
section 69(3) applies to any warrant issued
under this paragraph as if the warrant were
issued under that section.
(5) Subsections (1), (2) and (4) do not limit section 71.
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Discharge of Person
73. If the Attorney General determines under section 47 that
the person is not to be surrendered, the person must be
discharged from custody immediately unless that person is
subject to any other order for detention.
74. (1) This section applies if a person is not surrendered
and conveyed out of Trinidad and Tobago under a surrender
order or a temporary surrender order made under this Part within
two months—
(a) after the date of the issue of the warrant for the
detention of the person under section 46
pending surrender, if no appeal or application
for review or habeas corpus, in respect of a
determination under this Act, or any appeal
from such an appeal or application, is pending;
(b) if an appeal, or an application for review or
habeas corpus, in respect of a determination
under this Act, or any appeal from such an
appeal or application, is pending, after the date
that the proceedings are finally determined; or
(c) if a surrender order is made under section 48,
after the date that the order takes effect.
(2) If this section applies, the person may apply to a
Judge of the High Court to be discharged.
(3) If an application to be discharged is made under
subsection (2), the Judge may, on proof that reasonable notice of
the intention to make the application has been given to the Attorney
General, unless sufficient cause is shown against the discharge—
(a) discharge the surrender order or temporary
surrender order, as the case may be; and
(b) order the discharge of the person from the place
where the person is detained, if the person is
not liable to be detained under any other order
for detention.
75. (1) If a person has been surrendered under a
temporary surrender order made under section 49, nothing in
section 74 prevents an order being made under section 51.
Discharge of
person if
Attorney
General
declines to
order surrender.
Discharge of
person if not
surrendered
within two
months.
Discharge of
person if not
re-surrendered.
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(2) Subsection (3) applies if an order is made under
section 51 and the person is not surrendered and conveyed out of
Trinidad and Tobago under this Part within two months after the
date that the person ceases to be liable to be detained under the
sentence of imprisonment imposed by the High Court.
(3) If this subsection applies, the person may apply to a
Judge of the High Court to be discharged.
(4) If an application to be discharged is made under
subsection (3), the Judge may, on proof that reasonable notice of
the intention to make the application has been given to the Attorney
General, unless sufficient cause is shown against the discharge—
(a) discharge the surrender order; and
(b) order the discharge of the person from the place
where the person is detained, if the person is
not liable to be detained under any other order
for detention.
76. To avoid doubt, the discharge of a person under any
provision of this Part does not preclude further proceedings
under this Act, whether or not they are based on the same
conduct, to surrender the person to the ICC.
Miscellaneous Provisions Relating to Arrest and Surrender
77. (1) If a person is arrested on a warrant issued under this
Part, a police officer may search, without further warrant, the person
arrested and may seize any thing, including any sum of money, found
on the person or in the person’s possession if the police officer
believes on reasonable grounds that the thing on the person or in the
person’s possession may be evidence as to the commission of any
offence in relation to which the warrant for the arrest was issued for
which the surrender of the person is sought by the ICC.
(2) If there is no suitable searcher available at the place
where the search is to take place, the person to be searched may
be taken to another place to be searched.
(3) Nothing in this section limits or affects the right at
common law of a police officer to search a person on that
person’s arrest.
Discharge of
person under
this Part does
not preclude
further
proceedings.
Search and
seizure on
arrest.
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(4) If any thing is seized under subsection (1) from the
person arrested—
(a) the police officer shall make a report to the
Attorney General specifying the items seized
and any other relevant information; and
(b) the Attorney General shall, on receipt of the
report referred to in paragraph (a), provide the
ICC with a report on the seizure.
78. (1) If the Attorney General makes a surrender order or
temporary surrender order under this Act, he may also direct that
any thing that was seized under section 77 that may be evidence
of the offence the person is alleged to have committed or has
committed, be delivered with the person on the person’s
surrender to the ICC.
(2) If the person cannot be surrendered or temporarily
surrendered by reason of the person’s death or escape from
custody, the Attorney General may direct that any thing that was
seized under section 77 that may be evidence of the offence the
person is alleged to have committed or has committed be
delivered up to the ICC.
(3) If a person is discharged under this Act without
being surrendered or temporarily surrendered, the Attorney
General may direct that any thing seized under section 77 be
returned to the person from whom it was seized.
(4) The Attorney General may refuse to direct that any
thing referred to in subsection (1) or (2) be delivered to the ICC
if the thing is required for the investigation of an offence within
the jurisdiction of Trinidad and Tobago.
(5) The Attorney General may refuse to direct that any
thing referred to in subsection (3) be returned to the person if—
(a) the thing is the subject of a dispute as to who is
entitled to it;
(b) the thing is required for the investigation of an
offence within the jurisdiction of Trinidad and
Tobago; or
(c) possession of the thing by the person would be
unlawful in Trinidad and Tobago.
Disposal of
property seized.
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79. (1) If the ICC requests the surrender of a person, and
that person is detained in a Trinidad and Tobago prison or any
other place in Trinidad and Tobago at any time pending
surrender, the superintendent of the prison or the head of the
other place shall keep a record of the time spent in custody as if
the person was charged with an offence against the law of
Trinidad and Tobago and was on remand.
(2) The superintendent or the head of the other place
shall, if requested, provide to the Attorney General a certificate
recording—
(a) the date on which the person was admitted to a
prison or any other place to be held in custody
in relation to the request;
(b) the total period during which the person was
detained in custody during the process leading
to the surrender of the person in Trinidad and
Tobago in relation to the offence; and
(c) whether the person was, at any time during the
period in custody in relation to the surrender,
also serving a sentence for an offence against
Trinidad and Tobago law.
(3) The Minister shall provide to the ICC at the time of
the surrender of the person, or as soon as possible after that, a
certificate recording the information specified in subsection (2)
and such other information relating to any period spent in
custody in relation to the surrender as the ICC may request.
80. (1) This section applies if—
(a) a person is surrendered to the ICC under this
Act; and
(b) the ICC requests a waiver of the requirements
of article 101(1) of the Statute which relates to
the rule of speciality.
(2) If this section applies, the Minister may consent to
the person being proceeded against, punished, or detained for
conduct committed before surrender, not being the conduct or
course of conduct that forms the basis of the crimes for which
that person has been surrendered.
Information
about time
spent in
custody in
Trinidad and
Tobago.
Consent to trial
of surrendered
person for
previous
offences.
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(3) The consent given under subsection (2) may relate
to the person’s surrender to another State.
(4) Before giving consent under subsection (2), the
Attorney General may—
(a) request that additional information be provided
in accordance with article 91 of the Statute; and
(b) seek any assurances from the ICC that the
Minister thinks fit.
PART V
DOMESTIC PROCEDURES FOR OTHER TYPES OF
CO-OPERATION
Identifying or Locating Persons or Things
81. (1) This section applies if the ICC requests
assistance under any of article 19(8), 56, 64 or 93(1)(a) of the
Statute in locating or identifying a person or a thing believed to
be in Trinidad and Tobago.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or a proceeding
before the ICC; and
(b) the person to whom or thing to which the
request relates is or may be in Trinidad and
Tobago.
(3) If the Attorney General gives authority for the
request to proceed—
(a) he must forward the request to the appropriate
Trinidad and Tobago agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to locate or, as the
case may be, identify and locate the
person to whom or thing to which the
request relates; and
(ii) advise the Attorney General of the
outcome of those endeavours.
Assistance in
locating or
identifying
persons or
things.
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(4) This section does not give any person a power to
enter property in order to locate a person or item.
Taking Evidence and Producing Documents
82. (1) This section applies if the ICC requests, under any
of article 19(8), 56, 64, or 93(1)(b) of the Statute, that—
(a) evidence be taken in Trinidad and Tobago; or
(b) documents or other articles in Trinidad and
Tobago be produced.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or to a proceeding
before the ICC; and
(b) there are reasonable grounds for believing that
the evidence can be taken or, as the case may
be, the documents or other articles can be
produced in Trinidad and Tobago.
83. (1) If the Attorney General gives authority for a request
relating to the taking of evidence to proceed, the statement of
each witness shall be taken in writing on the oath or affirmation
of that witness by a Judge.
(2) The Judge who takes evidence under subsection (1),
shall—
(a) certify that the evidence was taken by him; and
(b) ensure that the evidence, as certified, is sent to
the Attorney General.
84. (1) If the Attorney General gives authority for a request
relating to the production of documents or other articles to
proceed, a Judge may make an order requiring their production.
(2) If the documents or other articles are produced, the
Judge must send them to the Attorney General together with a
written statement certifying that they were produced to the Judge.
(3) Notwithstanding subsection (2), in the case of
documents that are produced, the Judge may send to the Attorney
General copies of the documents certified by the Judge to be true
copies instead of the originals.
Assistance in
gathering
evidence.
Taking
evidence.
Producing
documents or
other articles.
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(4) Subsections (2) and (3) apply subject to any
contrary order by the Judge.
85. (1) The applicable law with respect to compelling a
person to appear before a Judge under section 83 or 84 and to
give evidence or answer questions, or to produce documents or
other articles, is the law specified in subsection (2) and that law
applies with any necessary modification.
(2) For the purposes of subsection (1), the
applicable law is the law of Trinidad and Tobago that applies to
the giving of evidence or the answering of questions or the
production of documents or other articles on the hearing of a
charge against a person for an offence against the law of Trinidad
and Tobago.
(3) Notwithstanding subsection (1), for the
purposes of sections 83 and 84, the person to whom the
investigations being conducted by the Prosecutor, or the
proceeding before the ICC relates, is competent but not
compellable to give evidence.
(4) Notwithstanding subsection (1), a person who is
required under section 83 or 84 to give evidence, or to produce
documents or other articles, is not required to give any evidence,
or to produce any document or article, that the person could not
be compelled to give or produce in the investigation being
conducted by the Prosecutor or the proceeding before the ICC.
(5) A person who is required under section 83 or 84 to
give evidence or to produce documents or other articles—
(a) has the same privileges in relation to the
answering of questions and the production of
documents or articles as if the investigation was
being conducted in Trinidad and Tobago or the
proceeding was pending in a Trinidad and
Tobago Court, as the case may be; and
(b) shall be given a copy of any statement required
to be given to a witness under the Rules in the
manner and form required by the Rules.
(6) Subsections (4) and (5) apply subject to section 31
and any contrary provision in the Statute or the Rules.
Protection of
witnesses.
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86. (1) In this section, “evidence certificate” means a
certificate or declaration that—
(a) is given or made by or on behalf of the ICC; and
(b) specifies or declares whether, under the Statute
or the Rules, a specified person or class of
persons could or could not be required to
answer a specified question or to produce a
specified document—
(i) generally;
(ii) in specified proceedings; or
(iii) in specified circumstances.
(2) An evidence certificate authenticated under
subsection (3) is admissible in proceedings for the purposes of
the application of section 85(4) as prima facie evidence of the
matters stated in the certificate.
(3) A certificate is authenticated for the purposes of
subsection (2) if it purports to be—
(a) signed or certified by a Judge, the Registrar, the
Deputy Registrar, or a member of the staff of
the ICC; or
(b) authenticated in any other manner authorised by
the Statute or the Rules.
87. (1) The following persons may appear and be legally
represented at a hearing held under section 83 or 84:
(a) the person to whom the proceeding before the
ICC or the investigation conducted by the
Prosecutor relates;
(b) any other person giving evidence or producing
documents or other articles at the hearing; and
(c) a representative of the Prosecutor or ICC.
(2) Subsection (1) applies subject to any contrary
provision of the Statute or the Rules.
(3) A certificate by a Judge under section 83(2) or 84(2)
shall state whether any of the persons specified in subsection (1)
were present when the evidence was taken or the documents or
other articles were produced.
ICC may give
certificate.
Certain persons
may appear.
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88. (1) A Judge may authorise a Registrar of the High Court
to exercise the powers of a Judge under section 83 or 84 in
respect of any particular case.
(2) An authorisation given under subsection (1) may be
revoked at any time by a Judge.
(3) If a matter in respect of which a Registrar has
jurisdiction under an authorisation given under subsection (1)
appears to the Registrar to be one of special difficulty, the
Registrar may refer the matter to a Judge, who may—
(a) dispose of the matter; or
(b) refer it back to the Registrar with such
directions as the Judge thinks fit.
(4) Nothing in this section prevents the exercise by any
Judge of any jurisdiction or powers conferred on any Registrar
under this section.
Questioning Persons
89. (1) This section applies if the ICC requests
assistance under any of article 19(8), 56, 64 or 93(1)(c) of
the Statute in questioning a person who is being investigated
or prosecuted.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or a proceeding
before the ICC; and
(b) the person is or may be in Trinidad and Tobago.
(3) If the Attorney General gives authority to
proceed—
(a) he shall forward the request to the appropriate
Trinidad and Tobago agency; and
(b) the agency shall, without delay:
(i) use its best endeavours to undertake the
questioning that the ICC has requested;
(ii) ensure that the answers to the questions
put are recorded in writing and make any
Powers of
Judge may be
exercised by
Registrar.
Assistance in
questioning
persons.
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other report on the questioning as it
considers to be appropriate in the
circumstances; and
(iii) advise the Attorney General of the
outcome of those endeavours and, if
relevant, deliver the record and any report
of the questioning to him.
90. (1) This section applies if there are grounds to believe
that a person who is to be questioned by a Trinidad and Tobago
agency following a request under article 93(1)(c) of the Statute
has committed a crime within the juridiction of the ICC.
(2) If this section applies, the person to be
questioned must be informed, before being questioned, that there
are grounds to believe that he has committed a crime within the
jurisdiction of the ICC and that he has the right—
(a) to remain silent, without such silence being a
consideration in the determination of guilt or
innocence;
(b) to have legal assistance of the person’s
choosing, or, if he does not have legal
assistance, to have legal assistance assigned to
him, in any case where the interests of justice so
require, and without payment by him in any
such case if he does not have sufficient means
to pay for it; and
(c) to be questioned in the presence of a lawyer unless
the person voluntarily waives the right to counsel.
(3) If there is any inconsistency between subsection (2)
and any other enactment, subsection (2) prevails.
(4) This section does not give any person power to
require another person to answer questions.
Assistance in Arranging Service
91. (1) This section applies if the ICC requests
assistance under any of article 19(8), 56, 58(7), 64 or 93(1)(d) of
the Statute in arranging for the service of a document in Trinidad
and Tobago.
Procedure
where
questioning by
Trinidad and
Tobago agency.
Assistance in
arranging
service.
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(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation conducted
by the Prosecutor or a proceeding before the ICC;
(b) the person or body to be served is or may be in
Trinidad and Tobago.
(3) If the Attorney General gives authority for the
request to proceed he shall forward the request for service to the
appropriate Trinidad and Tobago agency, and that agency shall,
without delay—
(a) use its best endeavours to have the process
served—
(i) in accordance with any procedure
specified in the request; or
(ii) if that procedure would be unlawful or
inappropriate in Trinidad and Tobago, or
if no procedure is specified, in
accordance with the law of Trinidad and
Tobago; and
(b) transmit to the Attorney General—
(i) a certificate as to service, if the document
is served; or
(ii) a statement of the reasons that prevented
service, if the document is not served.
(4) In this section, “document” includes—
(a) a summons requiring a person to appear as a
witness; and
(b) a summons to an accused that has been issued
under article 58(7) of the Statute.
Facilitating Appearance of Witnesses
92. (1) This section applies if the ICC requests
assistance under any of article 19(8), 56, 64 or 93(1)(e) of the
Statute in facilitating the voluntary appearance of a witness
before the ICC.
Request for
voluntary
appearance of
witness.
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(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or a proceeding
before the ICC;
(b) the witness’s attendance is sought so that the
witness can give evidence or information
relating to the investigation or proceeding; and
(c) the witness is or may be in Trinidad and
Tobago.
(3) In this section and sections 93 and 94,
“witness” includes a person who may give expert evidence, but
does not include either—
(a) a person who has been accused of an
international crime in the proceedings to which
the request relates; or
(b) a prisoner who is detained in relation to an
offence against Trinidad and Tobago law.
93. (1) If the Attorney General gives authority for the
request to facilitate the voluntary appearance of a witness to
proceed, he shall forward the request to the appropriate Trinidad
and Tobago agency.
(2) The Trinidad and Tobago agency to which a request
is forwarded under subsection (1) must make such inquiries as
may be necessary to ascertain if the prospective witness consents
to giving evidence or assisting the ICC.
(3) The Attorney General may, at any time, ask the ICC
to give one or more of the following assurances:
(a) that the witness will not be prosecuted, detained,
or subjected to any restriction of personal
freedom by the ICC in respect of all or any
specified acts or omissions that occurred before
the person’s departure from Trinidad and Tobago;
(b) that the witness will be returned to Trinidad and
Tobago as soon as practicable in accordance
with arrangements agreed to by the Attorney
General; and
Consent
required and
assurances may
be sought.
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(c) an assurance relating to such other matters as
the Attorney General thinks appropriate.
94. (1) The Attorney General may assist in the making of
arrangements to facilitate a witness’s attendance before the ICC
if the Attorney General is satisfied that—
(a) the prospective witness has consented to giving
the evidence or assistance requested; and
(b) the ICC has given adequate assurances where
appropriate.
(2) The Attorney General may—
(a) approve and arrange the travel of the witness to
the ICC;
(b) obtain such approvals, authorities and
permissions as are required for that purpose,
including, in the case of a person who although
not liable to be detained in a prison is subject to
a sentence—
(i) the variation, discharge or suspension of
the conditions of the person’s release
from prison; or
(ii) the variation, cancellation or suspension
of the person’s sentence, or of the
conditions of the person’s sentence; and
(c) take such other action for the purposes of
subsection (1) as he thinks appropriate.
Temporary Transfer of Prisoners
95. (1) This section applies if the ICC requests
assistance under article 93(1)(f) of the Statute in facilitating the
temporary transfer to the ICC of a Trinidad and Tobago prisoner.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the prosecutor or a proceeding
before the ICC; and
(b) the prisoner’s attendance is sought for the
purposes of identification or for obtaining
evidence or other assistance.
Attorney
General may
facilitate
appearance.
Request for
temporary
transfer of
prisoner.
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96. (1) If the Attorney General gives authority for the
request to facilitate the temporary transfer of a Trinidad and
Tobago prisoner to proceed, the Attorney General shall forward
the request to the appropriate Trinidad and Tobago agency.
(2) The Trinidad and Tobago agency to which a request is
forwarded under subsection (1), shall make such inquiries as may
be necessary to ascertain if the prisoner will consent to the transfer.
(3) The Attorney General may ask the ICC to give one
or more of the following assurances:
(a) that the prisoner will not be released from
custody without the prior approval of the
Attorney General;
(b) that the prisoner will be returned to Trinidad
and Tobago without delay in accordance with
arrangements agreed to by the Attorney
General; and
(c) an assurance relating to such other matters as
the Attorney General thinks appropriate.
97. (1) The Attorney General may authorise the temporary
transfer of a Trinidad and Tobago prisoner to the ICC if the
Attorney General is satisfied that—
(a) the prisoner has consented to giving the
evidence or assistance requested; and
(b) the ICC has given adequate assurances where
appropriate.
(2) If the Attorney General authorises the
temporary transfer of the prisoner to the ICC, he may—
(a) direct that the prisoner be released from the
prison in which he is detained, for the purpose
of the transfer to the ICC; and
(b) make arrangements for the prisoner to travel to
the ICC in the custody of—
(i) a police officer;
(ii) a prison officer; or
(iii) a person authorised for the purpose by the
ICC.
Consent
required and
assurances may
be sought.
Attorney
General may
arrange for
transfer.
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(3) A direction given by the Attorney General under
subsection (2) in respect of a prisoner is sufficient authority for
the release of the prisoner from the prison in which he is
detained, for the purposes of the direction.
(4) Every person released under a direction given under
subsection (2) is to be treated as continuing to be in the legal
custody of the penal institution from which he is so released,
while in Trinidad and Tobago during the period of that release.
98. (1) If a prisoner who is charged with or convicted of an
offence against the law of Trinidad and Tobago is transferred to
the ICC under section 97, the provisions of section 99 of this Act
shall apply to any period that the person spends in custody
outside Trinidad and Tobago in connection with the request
before sentence is imposed for the Trinidad and Tobago offence.
(2) If a prisoner who is serving a sentence for a Trinidad
and Tobago offence is transferred to the ICC under section 97—
(a) he is to be treated, while in custody outside
Trinidad and Tobago in connection with the
request, as being in custody for the purposes of
the Trinidad and Tobago sentence, which
continues to run; and
(b) the Attorney General—
(i) may at any time notify the ICC that the
prisoner is no longer required to be kept
in custody; and
(ii) must notify the ICC if the prisoner is no
longer liable to be detained in a Trinidad
and Tobago prison.
99. (1) If a prisoner who is charged with or convicted of an
offence against the law of Trinidad and Tobago (hereinafter
referred to as the Trinidad and Tobago offence) is transferred to
the ICC under section 97 before sentence is imposed for the
Trinidad and Tobago offence, the Attorney General may—
(a) advise the ICC of the date on which the prisoner
was sentenced for the Trinidad and Tobago
offence; and
Effect of
transfer on
prisoner’s
sentence.
Request for
information
about time
spent in
custody
overseas.
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(b) request the ICC to provide a certificate
recording the total period during which the
prisoner was detained outside Trinidad and
Tobago in connection with the request until
sentence was imposed for the Trinidad and
Tobago offence.
(2) A certificate obtained under subsection (1) is presumed
to be accurate in the absence of any evidence to the contrary.
(3) The Attorney General may issue a certificate setting
out the date and period specified in subsection (1) if—
(a) the ICC does not provide a certificate within a
reasonable time after he makes a request under
subsection (1); and
(b) he is satisfied from the information that he has, that
an accurate calculation can be made of the period
referred to in paragraph (b) of subsection (1).
Examination of Places or Sites
100. (1) This section applies if the ICC requests assistance
under any of article 19(8), 56, 64 or 93(1)(g) of the Statute in
examining places or sites in Trinidad and Tobago.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that the request relates to an
investigation being conducted by the Prosecutor or a proceeding
before the ICC.
(3) If the Attorney General gives authority for the
request to proceed—
(a) he shall forward the request to the appropriate
Trinidad and Tobago agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to undertake the
examination of the place or site in the
manner that the ICC has requested;
(ii) make such report on the examination as it
considers to be appropriate in the
circumstances; and
Assistance in
examining
places or sites.
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(iii) deliver the report of the examination to
the Attorney General.
(4) This section does not give any person the power to
enter a place or site.
Search and Seizure
101. (1) This section applies if the ICC makes a request
under any of article 19(8), 56, 64 or 93(1)(h) of the Statute for
search and seizure.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or a proceeding
before the ICC; and
(b) any thing relevant to the investigation or
proceeding is or may be located in Trinidad and
Tobago.
(3) If the Attorney General gives authority for the
request to proceed, he may authorise a police officer, in writing,
to apply to a Judge for a search warrant under section 102.
102. (1) This section applies if a Judge, on an application in
writing made on oath or affirmation by a police officer, is satisfied
that there are reasonable grounds for believing that there is in or
on any place or thing—
(a) any thing on or in respect of which an
international crime has been, or is suspected of
having been, committed; or
(b) any thing that may be evidence as to the
commission of any such crime.
(2) If this section applies, the Judge may issue a warrant
in respect of any thing referred to in subsection (1).
(3) A Judge shall not issue a warrant under this section
unless the application contains, or the applicant otherwise
supplies to the Judge, such information as the Judge requires
concerning the grounds on which the warrant is sought.
Request for
search and
seizure.
Issue of search
warrant.
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(4) A Judge may issue a warrant under this section
subject to such conditions as the Judge thinks fit.
103. A warrant issued under section 102 shall—
(a) be in the prescribed form;
(b) be directed to a police officer by name, or any
class of police officers specified in the warrant,
or generally to every police officer; and
(c) specify any conditions that the Judge has
imposed under section 102(4).
104. (1) Subject to any conditions specified in the warrant
under section 103, a warrant issued under section 102 authorises
the police officer executing the warrant—
(a) to enter and search the place or things specified
in the warrant at any time by day or night during
the currency of the warrant;
(b) to use such assistance as may be reasonable in
the circumstances for the purpose of the entry
and search;
(c) to use such force as is reasonable in the
circumstances for the purposes of effecting
entry, and for breaking open any thing in or on
the place searched; and
(d) to search for and seize any thing referred to in
section 102(1).
(2) A person called on to assist any police officer
executing a warrant issued under section 102 has the powers
described in paragraphs (c) and (d) of subsection (1).
105. A police officer may stop a vehicle for the purpose of
exercising a search power conferred by a warrant issued under
section 102 of this Act.
106. Every police officer executing any warrant issued under
section 102 shall—
(a) have that warrant with him or her;
(b) produce it on initial entry and, if requested, at
any subsequent time; and
Form and
content of
search warrant.
Powers
conferred by
warrant.
Power to stop
vehicles.
Person
executing
warrant to
produce
evidence of
authority.
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(c) shall, if requested at the time of the execution of
the warrant or at any subsequent time, provide a
copy of the warrant within seven days after the
request is made.
107. (1) Every police officer who executes a warrant issued
under section 102 shall, not later than seven days after the
seizure of any thing under that warrant, give to the owner or
occupier of the place or thing searched, and to every other person
whom the member of the police service has reason to believe
may have an interest in the thing seized, a written notice
specifying the—
(a) date and time of the execution of the warrant;
(b) identity of the person who executed the
warrant; and
(c) thing seized under the warrant.
(2) If the warrant is executed, a report on the execution of
the warrant, together with a copy of any notice given under
subsection (1) shall be sent to the Attorney General, without delay.
(3) If the warrant is not able to be executed, a report
explaining the reasons for this shall be sent to the Attorney
General, without delay.
108. (1) If a police officer seizes a thing under a warrant
issued under section 102, it shall be delivered into the custody
and control of—
(a) the Commissioner of Police; or
(b) a police officer designated by the Commissioner
to receive things seized under this Act.
(2) The Commissioner of Police or designated police
officer must—
(a) inform the Attorney General, without delay, that
the thing has been so delivered;
(b) retain the thing for a period not exceeding three
months from the day on which the thing was
seized, pending the Attorney General’s
direction under subsection (3) about how to
deal with the thing; and
Notice of
execution of
warrant.
Disposal of
things seized.
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(c) comply with any direction given by the
Attorney General.
(3) The Attorney General may, by written notice, give the
Commissioner of Police or designated police officer a direction—
(a) requiring the Commissioner of Police or
designated police officer to send the thing to the
ICC; and
(b) requiring the Commissioner of Police or
designated police officer to deal with the thing
in some other way.
(4) The Attorney General must direct the Commissioner
of Police or designated police officer to return the thing seized to
the person from whose possession it was seized as soon as
practicable, if—
(a) the ICC advises that the thing is not required for
the Prosecutor’s investigation or its proceeding; or
(b) no other direction is given by the Attorney
General before the expiry of three months from
the day on which the thing was seized.
(5) Notwithstanding subsection (4), the Attorney
General may refuse to return the thing to the person from whom
it was seized if—
(a) the thing is the subject of a dispute as to who is
entitled to it;
(b) the thing is required for the investigation of an
offence within the jurisdiction of Trinidad and
Tobago; or
(c) possession of the thing by the person would be
unlawful in Trinidad and Tobago.
Provision of Records and Documents
109. (1) This section applies if the ICC makes a request
under article 93(1)(i) of the Statute for the provision of records
and documents, including official records and documents.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or a proceeding
before the ICC; and
Facilitating
provision of
records and
documents.
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(b) the document or record sought is or may be in
Trinidad and Tobago.
(3) If the Attorney General gives authority for the
request to proceed—
(a) he shall forward the request to the appropriate
Trinidad and Tobago agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to locate and
make available the document or record
sought;
(ii) make such report on its endeavours as it
considers to be appropriate in the
circumstances; and
(iii) deliver the document or record, if
located, to the Attorney General.
(4) This section does not give any person power to
require the production of a document or record.
Protecting Victims and Witnesses and Preserving Evidence
110. (1) This section applies if the ICC requests
assistance under—
(a) article 93(1)(j) of the Statute in protecting
victims and witnesses or preserving evidence;
(b) article 19(8), or paragraph (2) or (3) of article 56,
in preserving evidence.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or a proceeding
before the ICC; and
(b) the assistance sought is not prohibited by
Trinidad and Tobago law.
(3) If the Attorney General gives authority for the
request to proceed—
(a) he shall—
(i) take such steps as he thinks appropriate in
the particular case;
Protecting
victims and
witnesses and
preserving
evidence.
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(ii) forward the request to the appropriate
Trinidad and Tobago agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to give effect to
the request;
(ii) make such report on its endeavours as it
considers to be appropriate in the
circumstances; and
(iii) deliver the report to the Attorney General.
Identifying, Freezing, or Seizing Property Associated with Crime
111. (1) This section applies if the ICC requests
assistance under article 93(1)(k) of the Statute in identifying,
tracing and freezing, or seizing tainted property for the purpose
of eventual forfeiture.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an international crime that
is being investigated by the Prosecutor, or
which is the subject of proceedings before the
ICC; and
(b) tainted property is or may be located in Trinidad
and Tobago.
112. (1) If the Attorney General gives authority for the
request for assistance in identifying, tracing and freezing, or
seizing tainted property to proceed, he may authorise the
appropriate Trinidad and Tobago authority to apply for one or
more of the following orders or warrants under the Proceeds of
Crime Act:
(a) a search warrant;
(b) a restraint order;
(c) a charging order; or
(d) a confiscation order.
(2) If the ICC’s request relates to the freezing of tainted
property, and the ICC has made an order in the nature of a
restraint order, the Attorney General may authorise the
appropriate authority to register that order, and section 130 shall
apply accordingly, with the necessary modifications.
Request
relating to
property
associated with
crime.
Attorney
General may
authorise
measures.
Ch. 11:27.
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Other Types of Assistance
113. (1) This section applies if the ICC requests any other
type of assistance under article 93(1) of the Statute for the
purposes of facilitating the investigation and prosecution of
crimes within the jurisdiction of the ICC.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that—
(a) the request relates to an investigation being
conducted by the Prosecutor or a proceeding
before the ICC; and
(b) the assistance sought is not prohibited by
Trinidad and Tobago law.
(3) If the Attorney General gives authority for the
request to proceed—
(a) he shall—
(i) take such steps as he thinks appropriate in
the particular case; and
(ii) forward the request to the appropriate
Trinidad and Tobago agency;
(b) that agency shall, without delay—
(i) use its best endeavours to give effect to
the request;
(ii) make such report on its endeavours as it
considers to be appropriate in the
circumstances; and
(iii) deliver the report to the Attorney General.
(4) If the Attorney General considers that the assistance
sought cannot lawfully be provided, he shall, before refusing the
request, and in accordance with article 93(5) of the Statute—
(a) consult with the ICC; or
(b) consider whether the assistance can be provided
subject to conditions or whether it can be provided
at a later date or in an alternative manner.
Request for
other types of
assistance.
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Restrictions on Provision of Assistance
114. (1) The Attorney General shall refuse a request by the
ICC for assistance to which this Part applies if—
(a) the ICC does not accept the conditions or other
modifications suggested in order to implement
the request as contemplated by article 93(5) of
the Statute and section 113(4);
(b) the ICC determines under article 18 or 19 of the
Statute that the case to which the request relates
is inadmissible and section 118(4) applies; or
(c) section 120(4) applies.
(2) The Attorney General may refuse a request by the
ICC to which this Part applies if —
(a) Part VIII, which relates to the protection of
national security or third party information
applies; or
(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.
(3) To avoid doubt the only grounds on which
assistance to the ICC may be refused are those specified in this
section and, if applicable, section 23(2), which relates to
offences involving the administration of justice.
115. (1) The Attorney General may postpone the
execution of a request for assistance under this Part if—
(a) the execution of the request would interfere
with an ongoing investigation or prosecution
for a different offence and section 117 applies;
(b) a ruling on admissibility is pending before the
ICC and section 118 applies;
(c) there are competing requests from the ICC and
from another State to which Trinidad and
Tobago is under an international obligation and
section 119(2)(a) applies;
Refusal of
assistance.
Postponement
of execution of
assistance.
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(d) the request is for assistance under article
93(1)(l) of the Statute and is one to which
section 113(4) applies; or
(e) a request of the kind referred to in section
120(2)(c) is made to the ICC.
(2) Even if a case is one to which subsection (1) applies,
the Attorney General may decide not to postpone the execution
of the request, and in that event the request must be dealt with in
accordance with this Part.
(3) If the Attorney General postpones the execution of a
request for assistance under this Part, the postponement may be
for a reasonable time and may, if the Attorney General considers
it desirable, be extended from time to time.
116. If the execution of a particular measure of assistance
specified in a request to which this Part applies is prohibited
under the laws in Trinidad and Tobago, notwithstanding any
other provision in this Part, the Attorney General shall—
(a) consider whether the assistance can be provided
in another manner or subject to conditions; and
(b) promptly consult with the ICC in order to
resolve the matter.
117. (1) If the immediate execution of a request by the ICC
for assistance to which this Part applies would interfere with an
ongoing investigation or prosecution of a case different from that
to which the request relates, the Attorney General may postpone
the execution of the request for a period of time agreed between
the Attorney General and the ICC.
(2) Notwithstanding section 115(3), the period of
postponement may be no longer than is reasonably necessary to
complete the investigation or prosecution.
(3) Before making a decision to postpone the
execution of a request, the Attorney General shall consider
whether the assistance could be provided immediately subject to
certain conditions.
(4) If the Attorney General decides to postpone the
execution of a request and the ICC seeks assistance in the
Procedure if
execution of
assistance
precluded under
Trinidad and
Tobago law.
Postponement
where ongoing
investigation or
prosecution.
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preservation of evidence under article 93(1)(j) of the Statute, the
Attorney General shall deal with that request in accordance with
this Part.
118. (1) This section applies if the ICC is considering an
admissibility challenge under article 18 or 19 of the Statute in
respect of a case that a request to which this Part applies.
(2) If the ICC has not made an order under article 18 or 19
of the Statute allowing the Prosecutor to collect evidence to which
the request relates, the Attorney General may postpone the
execution of the request until the ICC’s determination on
admissibility is issued.
(3) If the ICC has made an order under article 18 or 19
of the Statute allowing the Prosecutor to collect evidence to
which the request relates, the Attorney General may not postpone
the execution of a request under this section but must deal with
it under this Part.
(4) If the ICC determines that the case to which the
request relates is admissible, the request shall be refused.
(5) If the ICC determines that the case to which the
request relates is admissible, and there is no other ground for
refusing or postponing the request, the request shall continue to
be dealt with under this Part.
119. (1) If the Attorney General receives competing requests
for assistance from the ICC and from another State to which
Trinidad and Tobago is under an obligation to respond, the
Attorney General shall endeavour, after consultation with the
ICC and the other State, to satisfy both requests.
(2) For the purposes of subsection (1), the Attorney
General may do either or both of the following:
(a) postpone the execution of either of the
competing requests; or
(b) attach conditions to the provision of assistance
under either or both of the requests.
Postponement
where
admissibility
challenged.
Competing
requests.
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(3) If it is not possible to resolve the issue by
consultation, the method of dealing with the competing requests
shall be resolved in accordance with article 90 of the Statute, and
sections 61 to 65 shall apply with any necessary modifications.
120. (1) If a request by the ICC for assistance to which this
Part applies concerns persons who, or information or property
that, are subject to the control of another State or an international
organisation under an international agreement, the Attorney
General shall inform the ICC to enable it to direct its request to
the other State or international organisation.
(2) Subsections (3) to (5) apply if—
(a) the ICC makes a request for assistance;
(b) the ICC has not previously made a final
determination on whether or not article 98(1) of
the Statute applies to that request; and
(c) a request is made to the ICC to determine
whether or not article 98(1) applies to the
request for surrender.
(3) If this subsection applies, the Attorney General may
postpone the request for assistance until the ICC advises whether
or not it wishes to proceed with the request for assistance.
(4) If the ICC advises that it does not intend to proceed
with the request, the request for assistance shall be refused.
(5) If the ICC advises that it intends to proceed with the
request for assistance, and there is no other ground for refusing
or postponing the request, the request must continue to be dealt
with under this Part.
Miscellaneous
121. At any time before a formal response is sent to the ICC,
the Attorney General may decide that a request by the ICC for
assistance to which this Part applies will be refused or the
execution of the request postponed, on a ground specified in
section 114 or 115, even if the Attorney General has previously
given authority for the request to proceed.
Requests
involving
conflict with
other
international
obligations.
Effect of
authority to
proceed.
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122. If the ICC makes a request under Part 9 of the Statute to
assist a defendant in the preparation of his or her defence, that
request shall be dealt with in the same manner as a request for
assistance of a similar type, to assist the Prosecutor.
123. (1) The Prosecutor may execute a request that does not
involve any compulsory measures on Trinidad and Tobago territory
in the circumstances specified in article 99(4) of the Statute.
(2) If the Attorney General identifies difficulties with
the execution of a request to which article 99(4)(b) of the Statute
relates, the Attorney General shall, without delay, consult with
the ICC in order to resolve the matter.
(3) The provisions of this Act and the Statute, allowing a
person heard or examined by the ICC under article 72 of the Statute
to invoke restrictions designed to prevent disclosure of confidential
information connected with national security, apply to the
execution of requests for assistance under article 99 of the Statute.
PART VI
ENFORCEMENT OF PENALTIES
Orders Relating to Victim Reparation
124. (1) This section applies if—
(a) the ICC—
(i) makes an order under article 75 of the
Statute requiring reparation; and
(ii) requests that the order be enforced in
accordance with article 109 of the
Statute; and
(b) neither the conviction in respect of which the
order was imposed nor the order requiring
reparation is subject to further appeal.
(2) The Attorney General may give authority for the
request to proceed if satisfied that the order—
(a) requires reparation; and
(b) is of a kind that can be enforced in the
manner provided in this section.
Request may
relate to
assistance
sought by
defence.
Execution of
request by
Prosecutor.
Assistance with
enforcement of
orders for
victim
reparation.
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(3) If the Attorney General gives authority for the
request to proceed—
(a) the Attorney General shall refer the request to
the appropriate Trinidad and Tobago agency;
(b) that agency shall, without delay, take all such
steps as necessary to enforce the Order, as if it
were an Order of the High Court; and
(c) that agency shall, without delay, make such
report to the Attorney General on the results of
any action taken as it considers to be
appropriate in the circumstances.
(4) Nothing in this section limits or affects the provision
of other types of assistance to the ICC in relation to an order
made under article 75 of the Statute.
125. (1) This section applies if—
(a) the ICC—
(i) orders payment of a fine under article
77(2)(a) of the Statute; and
(ii) requests that the order be enforced in
accordance with article 109 of the
Statute; and
(b) neither the conviction in respect of which the
order was imposed nor the order for payment of
a fine is subject to further appeal.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that the order—
(a) involves a monetary penalty; and
(b) is of a kind that can be enforced in the manner
provided in this section.
(3) If the Attorney General gives authority for the
request to proceed—
(a) he shall refer the request to the appropriate
Trinidad and Tobago agency; and
(b) that agency shall, without delay—
(i) take such steps as are necessary to
Enforcement of
fines.
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enforce the order as if it were a fine
imposed on conviction under the laws of
Trinidad and Tobago; and
(ii) make such report to the Attorney General
on the results of any action taken as it
considers to be appropriate in the
circumstances.
(4) Nothing in this section limits or affects the
provisions of other types of assistance to the ICC in relation to a
penalty imposed under article 77 of the Statute.
Assistance with Enforcement of Forfeiture Orders
126. (1) This section applies if—
(a) the ICC—
(i) makes an order under article 77(2)(b) of
the Statute for the forfeiture of tainted
property; and
(ii) requests assistance under article 109(1)
of the Statute to enforce the forfeiture
order; and
(b) neither the conviction in respect of which the
order was imposed nor the forfeiture order is
subject to further appeal.
(2) The Attorney General may give authority for the
request to proceed if he is satisfied that the order is of a kind that
can be enforced in the manner provided in sections 127 to 131.
(3) If the Attorney General gives authority for the
request to proceed, he shall refer the request to the Solicitor
General for registration of the forfeiture order in the manner
provided in sections 127 to 129.
127. (1) The Solicitor General may apply to the High Court
for the registration of a forfeiture order or an amendment to such
an order.
(2) On an application under subsection (1), the Court
must register the order or the amendment to the order under
section 128 if it is satisfied that the order or amendment to the
order is in force.
Request for
forfeiture of
tainted
property.
Solicitor
General may
apply for
registration.
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128. (1) A forfeiture order, or an amendment to such an
order, shall be registered in the High Court in accordance with
the prescribed procedure, if any, of—
(a) a copy of the order or amendment sealed by the
ICC; or
(b) a copy of the order or amendment authenticated
in accordance with subsection (2).
(2) A document is authenticated for the purposes of
subsection (1)(b) if it purports to be—
(a) signed or certified by a Judge, the Registrar, the
Deputy Registrar, or a member of the staff of
the ICC; or
(b) authenticated in any other manner authorised by
the Statute or the Rules.
(3) An amendment to a forfeiture order does not, for the
purposes of this Act, have any effect until it is registered.
(4) A facsimile copy of a sealed or authenticated copy
of an order or an amendment of an order has the same effect, for
the purposes of this Act, as the sealed or authenticated copy that
is not a facsimile.
(5) Notwithstanding subsection (4), registration effected
by means of a facsimile copy ceases to have effect on the expiry
of the period of twenty-one days commencing on the date of
registration unless, before the expiry of that period, the sealed or
authenticated copy is registered.
129. If the High Court registers an order under section 128,
the Court may direct the Solicitor General to do either or both of
the following:
(a) give notice of the registration, in the manner
and within the time the Court considers
appropriate, to such persons other than a person
convicted of an offence in respect of which the
order was made, as the Court has reason to
believe may have an interest in the property; or
(b) publish notice of the registration in the
manner and within the time the Court
considers appropriate.
Method of
registration of
order.
Notice of
registration of
order.
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130. (1) A forfeiture order registered under section 128 has
effect and may be enforced as if it were a forfeiture order—
(a) made by the High Court under the Proceeds of
Crime Act; and
(b) entered on the date of registration.
(2) Subsection (1) applies subject to sections 132 and 133.
(3) If a forfeiture order is registered under section 128—
(a) the relevant provisions of the Proceeds of
Crime Act, so far as are applicable and with
any necessary modifications, apply in relation
to the order;
(b) the property shall be disposed of, or otherwise
dealt with, in accordance with the order of, or
directions given by, the ICC and the Attorney
General may give such directions as may be
necessary to give effect to that order or those
directions; and
(c) if, for any reason, the Attorney General is not
able to dispose of the property in accordance
with the ICC’s order or directions, the Attorney
General may, after consulting with the ICC,
arrange for the property to be transferred to the
person in whom it was vested immediately
before the forfeiture order was made.
(4) A restraint order registered in accordance with
section 112(2) has effect, and may be enforced, as if it were a
restraint order—
(a) made by the High Court under the Proceeds of
Crime Act; and
(b) entered on the date of registration.
131. (1) If the Attorney General is unable to give effect to a
forfeiture order, he shall take measures to recover—
(a) the value specified by the ICC as the value of
the tainted property ordered by the ICC to be
forfeited; or
Effect of
registration of
order.
Ch. 11:27.
Forfeiture order
may be treated
as pecuniary
penalty order.
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(b) if the ICC has not specified the value of the
tainted property, the value that, in the opinion of
the Attorney General, is the value of the tainted
property ordered by the ICC to be forfeited.
(2) In a case to which subsection (1) applies, the
forfeiture order is to be treated as a fine for the equivalent
amount and may be enforced accordingly as if it were a fine—
(a) imposed by the High Court; and
(b) entered on the date of registration.
132. (1) If a forfeiture order is registered under section 128,
a person, other than a person convicted of an offence in respect
of which the order was made, who claims an interest in any of
the property to which the order relates may apply to the High
Court for an order under section 133.
(2) A person on whom notice of the hearing of the ICC
held in connection with the making of the forfeiture order was
served, or who appeared at the hearing, may not make an application
under subsection (1) without the leave of the High Court.
(3) The High Court shall not grant leave under
subsection (2) unless it is satisfied that—
(a) the applicant had good reason for failing to
attend the hearing held by the ICC in connection
with the making of the forfeiture order;
(b) evidence proposed to be adduced by the
applicant in connection with the application
under subsection (1) was not reasonably
available to the applicant at the time of the
hearing of the ICC; or
(c) there are special reasons justifying the grant of leave.
(4) An application under subsection (1) shall be made
before the expiry of the period of two months beginning on the
date on which the forfeiture order is registered in the High Court.
(5) Notwithstanding subsection (4), the High Court may
grant a person leave to make an application under subsection (1)
after the expiry of the period referred to in subsection (4) if it is
satisfied that the person’s failure to apply within that period was
not owing to any neglect on his part.
Third parties
may apply for
relief.
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(6) A person who makes an application under
subsection (1) shall serve notice of the application on the
Solicitor General, who shall be a party to any proceedings on
the application.
(7) This section and section 133 apply subject to any
contrary provision in the Statute or the Rules.
133. (1) This section applies if—
(a) a person applies to the High Court for an order
under this section in respect of an interest in
property; and
(b) the Court is satisfied that the applicant’s claim
is valid.
(2) If this section applies, the High Court shall make
an order—
(a) declaring the nature, extent, and value of the
applicant’s interest in the property; and
(b) either—
(i) directing that the interest be transferred to
the applicant; or
(ii) declaring that payment be made to the
applicant of an amount equal to the value
of the interest declared by the Court.
(3) Notwithstanding subsection (2), the Court may, if it
thinks fit, refuse to make an order under that subsection if it is
satisfied that—
(a) the applicant was, in any respect, involved in
the commission of the offence in respect of
which the order was made; or
(b) although the applicant acquired the interest at
the time of or after the commission of the
offence, it was not acquired in good faith and
for value.
134. (1) If a forfeiture order has been registered under section 128,
the Attorney General may direct the Solicitor General to apply to the
High Court for cancellation of the registration.
Court may
grant relief to
third party.
Cancellation of
registration of
order.
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(2) Without limiting the generality of subsection (1), the
Attorney General may give a direction under that subsection in
relation to a forfeiture order if—
(a) the order has, since its registration in Trinidad
and Tobago, ceased to have effect;
(b) the order was registered in contravention of
section 126;
(c) the Attorney General considers that cancellation
is appropriate having regard to the
arrangements in force with the ICC in relation
to the enforcement of orders of that kind; or
(d) the ICC so requests.
(3) If, in accordance with a direction given under
subsection (1), the Solicitor General applies to the High Court
for cancellation of the registration of a forfeiture order, the Court
shall cancel the registration accordingly.
Transfer of Money or Property Recovered under this Part
135. (1) Any money or property, including the proceeds of
sale of property, recovered as a result of the enforcement under
this Part of an order of the ICC shall be transferred to the ICC.
(2) Subsection (1) applies—
(a) subject to section 130(3)(b) and (c); but
(b) notwithstanding any other provision in this Part
or in any other Act.
PART VII
PERSONS IN TRANSIT TO ICC OR SERVING
SENTENCES IMPOSED BY ICC
Person in Transit
136. (1) This section and sections 137, 138 and 150 to 156
apply to a person (hereinafter referred to as “the transferee”) who—
(a) is being surrendered to the ICC by another State
under article 89 of the Statute;
(b) is a person to whom article 93(7) of the Statute
applies, and is being temporarily transferred to
the ICC by another State; or
Money or
property
recovered to be
transferred to
ICC.
Transit by
person being
surrendered or
transferred to
ICC.
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(c) is a person sentenced to imprisonment by the
ICC and who is being transferred to or from
the ICC, or between States, in connection with
that sentence.
(2) The transferee may be transported through Trinidad
and Tobago for the purpose of being surrendered or transferred
to the ICC or to another State, as the case may be.
(3) Before the transferee is transported through Trinidad
and Tobago under subsection (2), the ICC must first transmit a
request in accordance with article 87 of the Statute that contains
the following information and documents:
(a) a description of the transferee;
(b) in the case of a person described in
subsection (1)(a)—
(i) a brief statement of the facts of the case
and their legal characterisation; and
(ii) a copy of the warrant for arrest and
surrender; and
(c) in a case of a person described in subsection (1)(b),
such information as the Attorney General may
request about the reasons for the temporary
transfer.
(4) Notwithstanding subsection (3), the Attorney
General shall not refuse a request for transit unless he considers
that transit through Trinidad and Tobago would impede or delay
the surrender or transfer of the transferee.
(5) Notwithstanding subsection (3), no authorisation for
transit is required if the transferee is transported by air and no
landing is scheduled on Trinidad and Tobago territory.
(6) If an unscheduled landing occurs on Trinidad and
Tobago territory, the Attorney General may require the ICC to
submit a request for transit of the transferee under subsection (3)
as soon as is reasonably practicable.
137. (1) The transferee shall, during the period of transit, be
detained in custody in accordance with subsection (2).
Transferee to
be held in
custody.
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(2) If the aircraft or ship that transports a transferee
lands or calls at any place in Trinidad and Tobago—
(a) the person holding the transferee in custody
before the landing or call is made may hold the
transferee in his or her custody or in police
custody for a period not exceeding ninety-six
hours; and
(b) a High Court may, on the application of a police
officer, order that the transferee be held in
custody for such further period as the Court
considers reasonably necessary to facilitate the
transportation of the transferee to the ICC or to
another State, as the case may be.
(3) If an unscheduled landing occurs and the ICC is
required under section 136(6) to submit a request for transit, the
transferee must be held in custody under subsection (2).
(4) If subsection (3) applies, the period of detention of
the transferee may not be extended beyond ninety-six hours from
the time of the unscheduled landing, unless the request for transit
from the ICC is received within that time.
(5) If a High Court orders, under subsection (2)(b), that
a transferee be held in custody, the transferee may be detained in
a prison or any other place in which a person could be detained
under section 42.
138. (1) If a transferee is not removed before or at the expiry
of all periods of custody under section 137(2), the Attorney
General shall either—
(a) make a removal order under section 153; or
(b) issue a certificate under section 150 giving the
transferee temporary authority to remain in
Trinidad and Tobago.
(2) Notwithstanding subsection (1), no removal order
may be made under section 153 unless—
(a) the Attorney General first consults with the
ICC; and
Attorney
General must
make removal
order or issue
certificate.
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(b) it is not possible for the Attorney General and
the ICC to reach agreement relating to the
prompt removal of the transferee.
(3) The Attorney General may not issue the
certificate referred to in subsection (1)(b) unless he is satisfied
that, because of the special circumstances of the transferee, it
would be inappropriate to make a removal order.
Enforcement of Sentences in Trinidad and Tobago
139. (1) The Attorney General may advise the ICC that
Trinidad and Tobago is willing to allow persons who are ICC
prisoners as a result of being sentenced to imprisonment by the
ICC to serve those sentences in Trinidad and Tobago, subject to
any specified conditions.
(2) If advice is given under subsection (1), the Attorney
General may, at any time, advise the ICC—
(a) of further conditions that Trinidad and Tobago
wishes to impose in relation to the serving of
sentences in Trinidad and Tobago by ICC
prisoners; or
(b) that it wishes to withdraw a condition referred
to in subsection (1) or paragraph (a).
(3) If advice is given under subsection (1), the Attorney
General may, at any time, advise the ICC that Trinidad and
Tobago is no longer willing to allow ICC prisoners to serve their
sentences in Trinidad and Tobago.
(4) Any advice given under subsection (3) does not
affect the enforcement of sentences for which the Attorney
General has accepted the designation of the ICC under
section 140(1)(c).
140. (1) This section and sections 141 to 156 apply if—
(a) the Attorney General has given advice under
section 139(1) and has not withdrawn that
advice under section 139(3); and
(b) the ICC imposes a sentence of imprisonment on
a person—
(i) convicted of an international crime; or
Trinidad and
Tobago may act
as State of
enforcement.
Request for
sentence to be
served in
Trinidad and
Tobago.
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(ii) convicted of an offence against the
administration of justice; and
(c) the ICC designates Trinidad and Tobago, under
article 103 of the Statute, as the State in which
the sentence is to be served.
(2) If the Attorney General accepts the designation, he
shall issue an order for detention in the prescribed form.
(3) The Attorney General may, at any time, ask the ICC
to give one or more of the following assurances:
(a) that all or part of the transportation costs incurred
by Trinidad and Tobago in the enforcement of the
sentence will be met by the ICC;
(b) that the ICC will arrange for the transportation
of the ICC prisoner who is the subject of the
designation—
(i) to Trinidad and Tobago, for the purpose
of enabling his or her sentence to be
enforced in Trinidad and Tobago; or
(ii) from Trinidad and Tobago, on the
completion of the sentence, or if the ICC
prisoner is to be transferred to another
country; and
(c) an assurance relating to such other matters as
the Attorney General thinks appropriate.
141. (1) If the Attorney General accepts the designation of
Trinidad and Tobago as the State in which a sentence of
imprisonment imposed by the ICC is to be served, the ICC
prisoner may be transported to Trinidad and Tobago in the
custody of—
(a) a police officer;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.
(2) On arrival in Trinidad and Tobago or, if the person
is already in Trinidad and Tobago when the sentence is imposed,
Prisoner to be
held in custody.
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on the imposition of the sentence, the ICC prisoner shall be
detained in accordance with the Prisons Act, as if the prisoner
had been sentenced to imprisonment under Trinidad and
Tobago law.
(3) Notwithstanding subsection (2) and any other
enactment—
(a) the ICC prisoner has the right to communicate
on a confidential basis with the ICC, without
impediment from any person;
(b) a Judge of the ICC or a member of the staff of the
ICC may visit the ICC prisoner for the purpose
of hearing any representations by the prisoner
without the presence of any other person, except
any representative of the prisoner;
(c) the ICC prisoner shall not, without the prior
agreement of the ICC, be released from prison; and
(d) the Attorney General must advise the ICC if the
ICC prisoner is transferred to a hospital.
142. The order for detention issued by the Attorney General
under section 140(2) is sufficient authority for the detention of
the prisoner to which the notice relates for the purposes of this
Part and the Prisons Act—
(a) until the ICC prisoner completes, or is released
from, the sentence or is transferred to another
country; and
(b) during any further period that the ICC
prisoner is required to serve the sentence if the
ICC makes an order for recall of the prisoner.
143. The administration of a sentence of imprisonment imposed
by the ICC that is served in Trinidad and Tobago, including any
decision to release or transfer the ICC prisoner, shall be undertaken
in accordance with Part 10 of the Statute and the Rules,
notwithstanding the provisions of any other Act.
144. (1) This section applies if the ICC, under article 110 of
the Statute, decides to review the sentence of an ICC prisoner
who is serving that sentence in Trinidad and Tobago.
Ch. 13:01.
Order for
detention to act
as authority for
detention.
Administration
of prison
sentence.
Transfer of
prisoner to ICC
for review of
sentence.
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(2) The Attorney General must direct that the prisoner
be transferred to the ICC for the purposes of enabling the ICC to
review the prisoner’s sentence if the Minister is satisfied that—
(a) the prisoner is entitled to appear before the ICC
at the review of the prisoner’s sentence;
(b) the ICC has requested the prisoner to appear
before it at the review; or
(c) the interests of justice require the prisoner’s
attendance at the ICC.
(3) On the giving of a direction under subsection (2),
the prisoner may be transported to the ICC and, if necessary,
from the ICC in the custody of —
(a) a police officer;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.
145. (1) This section applies if the ICC—
(a) directs that an ICC prisoner appear before it to
give evidence in another case; or
(b) requests that an ICC prisoner appear before it
for any other reason.
(2) The Attorney General—
(a) if subsection (1)(a) applies, shall direct that the
ICC prisoner be transferred to the ICC; or
(b) if subsection (1)(b) applies, may direct that the
ICC prisoner be transferred to the ICC if he is
satisfied that the interests of justice require the
prisoner’s attendance at the ICC.
(3) If the Attorney General gives a direction under
subsection (2), section 144(3) and (4) apply, with any necessary
modifications.
(4) This section does not apply if the request by the ICC
is a request to which section 95(1) applies.
146. If an ICC prisoner of any nationality is to be transferred
from Trinidad and Tobago to another State to complete that
Transfer of
prisoner to ICC
for other
purposes.
Transfer of
prisoner to
another State to
complete
sentence.
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sentence, the prisoner may be transported from Trinidad and
Tobago to that State in the custody of—
(a) a police officer;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.
147. (1) If an ICC prisoner is to complete his sentence in
Trinidad and Tobago or to be released at the direction of the ICC
while in Trinidad and Tobago and the prisoner is not a Trinidad
and Tobago citizen, the Attorney General shall, before the date of
completion or release, either—
(a) make a removal order under section 153; or
(b) issue a certificate under section 150 giving the
prisoner temporary authority to remain in
Trinidad and Tobago.
(2) The Attorney General shall not issue the certificate
referred to in subsection (1)(b) unless he is satisfied that—
(a) because of the special circumstances of the ICC
prisoner, it would be inappropriate to make a
removal order; or
(b) it is desirable to issue a certificate under section
150 in order to facilitate the processing of a
request of extradition of the ICC prisoner, or the
investigation of an offence, or to enable the
prisoner to serve another sentence in Trinidad
and Tobago, or for any other reason in the
interests of justice.
(3) This section applies subject to section 148.
148. (1) An ICC prisoner serving a sentence in Trinidad and
Tobago may—
(a) be extradited to another country in accordance
with the Extradition (Commonwealth and
Foreign Territories) Act, either—
(i) at the completion of the sentence; or
(ii) during the sentence, but only for a
temporary period;
Attorney
General must
make removal
order or issue
certificate.
Special rules in
certain cases.
Ch. 12:04.
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(b) be required to remain in Trinidad and Tobago in
order to serve any sentence that the prisoner is
liable to serve under Trinidad and Tobago law; or
(c) be required to remain in Trinidad and Tobago to
undergo trial for an offence under Trinidad and
Tobago law.
(2) Notwithstanding subsection (1) a person to whom—
(a) subsection (1)(a) applies may not be extradited
to another country without the prior agreement
of the ICC; or
(b) subsection (1)(b) or (c) applies may not be
required to serve a sentence in Trinidad and
Tobago or to undergo trial for an offence under
Trinidad and Tobago law, as the case may be, that
relates to an act or omission that occurred before
the designation referred to in section 140(1)(c),
without the prior agreement of the ICC.
(3) Subsection (2) does not apply to a person who—
(a) remains voluntarily in Trinidad and Tobago for
more than thirty days after the date of
completion of, or release from, the sentence
imposed by the ICC; or
(b) voluntarily returns to Trinidad and Tobago after
having left.
149. (1) Subsection (2) applies if—
(a) an ICC prisoner serving a sentence in another
State escapes from custody and is located in
Trinidad and Tobago; and
(b) the State designated by the ICC as the State of
enforcement of the sentence makes a request to
Trinidad and Tobago for extradition in
accordance with article 111 of the Statute.
(2) If this subsection applies, the Extradition Act
applies to a request for extradition—
(a) with any necessary modifications; and
(b) as if the request related to a person who had
been convicted of an extradition offence, within
the meaning of section 2 of that Act.
Extradition of
escaped ICC
prisoner.
Ch. 12:04.
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(3) Subsection (4) applies if—
(a) an ICC prisoner serving a sentence in Trinidad
and Tobago escapes from custody and is located
in another State; and
(b) the Attorney General wishes to make a request
to that State for the person’s extradition in
accordance with article 111.
(4) If this subsection applies, the Attorney General may
make a request for the prisoner’s extradition under the
Extradition Act, and that Act applies—
(a) with any necessary modifications; and
(b) as if the request related to a person who had
been convicted of an extradition offence, within
the meaning of section 2 of that Act.
Certificates and Removal Orders
150. (1) A certificate issued by the Attorney General under
this section may—
(a) be issued for a period, not exceeding three
months, specified in the certificate;
(b) from time to time, be renewed for further
periods not exceeding three months; and
(c) if the Attorney General thinks fit, order that the
person named in the certificate be taken into
custody.
(2) The certificate is, while it remains in force,
sufficient authority for the person named in the certificate to
remain in Trinidad and Tobago.
(3) Nothing in the Immigration Act applies to the
person named in the certificate while the certificate is in force.
151. The Attorney General shall cancel the certificate issued
under section 150 and make a removal order under section 153
in respect of a person if, there do not appear to the Attorney
General to be any other grounds on which the person should be
permitted to remain in Trinidad and Tobago.
Ch. 12:04.
Certificate
giving
temporary
authority to
remain in
Trinidad and
Tobago.
Ch. 18:01.
Cancellation of
certificate.
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152. (1) If a certificate issued under section 150 orders that a
person be taken into custody, the certificate is sufficient authority
for a police officer to arrest the person and take him into custody.
(2) A person who is taken into custody under this
section shall, unless sooner released, be brought before a Judge
as soon as possible and, after that, every twenty-one days while
the certificate is in force to determine, in accordance with
subsection (3), if the person should be detained in custody or
released pending the decisions referred to in section 151.
(3) If a person is brought before a Judge under
subsection (2), the Judge may, if he is satisfied that the person is
the person named in the certificate—
(a) issue a warrant for the detention of the person in
custody if he is satisfied that, if not detained, the
person is likely to abscond; or
(b) order the release of the person subject to such
conditions, if any, that he thinks fit.
(4) A warrant for the detention of the person issued
under subsection (3)(a) may authorise the detention of the person
in a prison or any other place in which a person could be detained
under section 42.
153. (1) A removal order made by the Attorney General
under this section may—
(a) either—
(i) require the person who is the subject of
the order to be released into or taken into
the custody of a police officer; or
(ii) if the person is not in custody, authorise any
police officer to take the person into custody;
(b) must specify that the person is to be taken by a
police officer and placed on board any craft for
the purpose of effecting the person’s removal
from Trinidad and Tobago; and
(c) may authorise the detention in custody of the
person while awaiting removal from Trinidad
and Tobago.
Further
provisions
relating to
certificate.
Removal order.
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(2) The removal order shall be served on the person
named in the order by personal service.
(3) If the removal order authorises the detention of the
person in custody, the person may be detained—
(a) in a prison, or any other place in which a person
could be detained under section 42; or
(b) at a seaport or airport.
(4) A removal order made under this section continues
in force until it is executed or cancelled.
(5) In this section, “personal service” in relation to a
removal order, means personal delivery of the order to the person
to whom it relates or, if the person refuses to accept the order,
bringing the order to the person’s attention.
154. (1) If a person is not able to be conveyed out of Trinidad
and Tobago within forty-eight hours after service of a removal
issued under section 153, the person shall be brought before a
Judge to determine, in accordance with subsection (2), whether
the person should be detained in custody or released pending
removal from Trinidad and Tobago.
(2) If a person is brought before a Judge under
subsection (1), the Judge may, if he is satisfied that the person is
the person named in the order—
(a) issue a warrant for the detention of the person in
custody if he is satisfied that, if not detained, the
person is likely to abscond; or
(b) order the release of the person subject to such
conditions, if any, that he thinks fit.
(3) A warrant for the detention of the person issued
under subsection (2)(a) may authorise the detention of the person
in any place specified in section 153(3).
155. A person to whom this Part applies is not required to
hold a permit under the Immigration Act if, and for so long as, he
is in Trinidad and Tobago in accordance with this Part, whether
or not he is in custody.
Delay in
removal.
Immigration
permit not
required.
Ch. 18:01.
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156. Nothing in this Part authorises the making of a removal
order under section 153 in respect of a Trinidad and Tobago citizen.
PART VIII
PROTECTION OF NATIONAL SECURITY OR THIRD
PARTY INFORMATION
National Security
157. If an issue relating to Trinidad and Tobago’s national
security interests arises at any stage of any proceedings before
the ICC, the issue shall be dealt with in the manner provided in
article 72 of the Statute and this Part.
158. (1) If a request for assistance made under Part 9 of the
Statute appears to concern the production of any documents or
disclosure of evidence that would, in the opinion of the Attorney
General, prejudice Trinidad and Tobago’s national security
interests, that request shall be dealt with in accordance with the
process specified in sections 161 and 162.
(2) If, having followed the specified process the matter
is not able to be resolved, the Attorney General may refuse the
request or decline to authorise the production of the documents
or giving of the evidence, as the case may be.
159. (1) This section applies if a person who has been
requested to give information or evidence—
(a) refuses to do so on the ground that disclosure
would prejudice the national security interests
of Trinidad and Tobago; or
(b) refers the matter to the Attorney General on the
ground that disclosure would prejudice the
national security interests of Trinidad and
Tobago.
(2) If this section applies, the Attorney General shall
determine whether or not he is of the opinion that the giving of
information or evidence would prejudice Trinidad and Tobago’s
national security interests.
Trinidad and
Tobago
citizens.
National
security issues
to be dealt with
under article 72.
Part 9 request
involving
national
security.
Information or
evidence
involving
national
security.
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(3) If the Attorney General confirms that he is of the
opinion that disclosure would prejudice Trinidad and Tobago’s
national security interests, the matter shall be dealt with in
accordance with the process specified in sections 161 and 162.
(4) If, having followed the specified process, the matter
has not been resolved, the Attorney General may refuse the
request or decline to authorise the provision of the information or
giving of the evidence, as the case may be.
160. (1) If, in any circumstances other than those specified in
sections 158 and 159, the Attorney General is of the opinion that
the disclosure of information or documents to the ICC would
prejudice Trinidad and Tobago’s national security interests, the
matter shall be dealt with in accordance with the process
specified in sections 161 and 162.
(2) Without limiting subsection (1), this section applies
if the Attorney General learns that information or documents are
being, or are likely to be, disclosed at any stage of the
proceedings, and intervenes in accordance with article 72(4) of
the Statute.
(3) If, having followed the specified process, the matter
has not been resolved and the ICC has not made an order for
disclosure under article 72(7)(b)(i) of the Statute, the Attorney
General may refuse the request or decline to authorise the
provision of the information or giving of the evidence, as the
case may be.
161. The Attorney General shall consult with the ICC and, if
appropriate, the defence, in accordance with article 72(5) of the Statute.
162. (1) If, after consultation, the Attorney General considers
that there are no means or conditions under which the
information or documents or evidence could be provided or
disclosed or given without prejudice to Trinidad and Tobago’s
national security interest, the Attorney General shall notify the
ICC, in accordance with article 72(6) of the Statute, of the
specific reasons for his decision, unless a specific description of
the reasons would result in prejudice to Trinidad and Tobago’s
national security interests.
Other situations
involving
national
security.
Consultation
with ICC
required.
Procedure
where no
resolution.
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(2) The Attorney General shall use his best endeavours
with a view to reaching a mutually satisfactory outcome if—
(a) the ICC determines that the evidence is relevant
and necessary for the establishment of the guilt
or innocence of the accused;
(b) the issue of disclosure arises in the
circumstances specified in section 158 or 159
and the Attorney General is of the opinion that
Trinidad and Tobago’s national security
interests would be prejudiced by disclosure; and
(c) the ICC requests further consultations for the
purpose of considering the representations, which
may include hearings in camera and ex parte.
(3) The Attorney General shall comply with an ICC
disclosure order if—
(a) the ICC determines that the evidence is relevant
and necessary for the establishment of the guilt
or innocence of the defendant;
(b) the issue of disclosure arises in the circumstances
specified in section 160(1); and
(c) the ICC orders disclosure in accordance with
article 72(7)(b)(i) of the Statute.
163. In determining what action to take in relation to a matter to
which this Part applies, the Attorney General shall take into account
the power of the ICC to refer a matter to the Assembly of States
Parties or to the Security Council in accordance with article 87(7)
of the Statute if the ICC considers that a requested State is not
acting in accordance with its obligations under the Statute.
Information Provided by Third Party
164. (1) If the ICC requests the provision of a
document or information that was provided or disclosed to
Trinidad and Tobago in confidence by another State, inter-
governmental organisation, or international organisation, the
Attorney General shall seek the consent of the originator before
providing that document or information to the ICC.
Attorney
General must
take into
account ICC’s
ability to refer
matter to
Security
Council.
Disclosure of
information
provided by
third party.
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(2) If the originator is a State Party that consents to
disclosure of the information or document, the Attorney General
shall, subject to article 72 of the Statute, provide that information
or document to the ICC.
(3) If the originator is a State Party that undertakes to
resolve the issue of disclosure with the ICC under article 73, the
Attorney General shall inform the ICC of that undertaking.
(4) If the originator is not a State Party and refuses to
consent to disclosure, the Attorney General shall inform the ICC
that he is unable to provide the document or information because
of an existing obligation of confidentiality to the originator.
165. (1) If a request is received from another State for
Trinidad and Tobago’s consent to the disclosure to the ICC of a
document or information that had been disclosed to the State in
confidence, the Attorney General shall either—
(a) consent to the disclosure; or
(b) undertake to resolve the matter with the ICC.
(2) The provision of an undertaking under subsection (1)(b)
does not prevent the Attorney General from refusing the assistance
sought in accordance with section 164(4).
PART IX
INVESTIGATIONS OR SITTINGS OF ICC IN TRINIDAD
AND TOBAGO
166. The Prosecutor may conduct investigations in Trinidad
and Tobago territory—
(a) in accordance with Part 9 of the Statute and as
specified in section 27; or
(b) as authorised by the Pre-Trial Chamber under
article 57(3)(d) of the Statute.
167. The ICC may sit in Trinidad and Tobago for the purpose
of performing its functions under the Statute and under the
Rules, including, without limitation—
(a) taking evidence;
(b) conducting or continuing a proceeding;
Request for
Trinidad and
Tobago’s
consent to
disclosure.
Prosecutor may
conduct
investigations
in Trinidad and
Tobago.
ICC sittings in
Trinidad and
Tobago.
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(c) giving judgment in a proceeding; or
(d) reviewing a sentence.
168. While the ICC is sitting in Trinidad and Tobago, it may
exercise its functions and powers as provided under the Statute
and under the Rules.
169. The ICC may, at any sitting of the ICC in Trinidad and
Tobago, administer an oath or affirmation giving an undertaking
as to truthfulness in accordance with the practice and procedure
of the ICC.
170. No application for judicial review and no application for
an order of mandamus or prohibition or certiorari or for a
declaration or injunction may be brought in respect of any
judgment or order or determination of the ICC that is made or
given at a sitting of the ICC in Trinidad and Tobago.
171. (1) A person in Trinidad and Tobago shall be kept in
custody as the Minister directs in writing if—
(a) the ICC holds any sitting in Trinidad and
Tobago; and
(b) the ICC requests that the person whose
presence is required at the proceedings be held
in custody as an ICC prisoner while the sitting
continues in Trinidad and Tobago.
(2) A direction given under subsection (1) in respect of
an ICC prisoner is sufficient authority for the detention of that
prisoner in accordance with the terms of the direction.
(3) If an ICC prisoner is directed to be detained in a
prison under subsection (1), the Prisons Act, so far as applicable
and with all necessary modifications, applies with respect to that
prisoner as if the prisoner had been remanded in custody or
sentenced to imprisonment for an offence against the law of
Trinidad and Tobago, as the case may require, and is liable to be
detained in a prison accordingly.
(4) An ICC prisoner who is in custody in a Trinidad and
Tobago prison or other detention facility is deemed to be in
lawful custody while in Trinidad and Tobago.
ICC’s powers
while sitting in
Trinidad and
Tobago.
ICC may
administer
oaths in
Trinidad and
Tobago.
Orders made by
ICC not subject
to review.
Power to detain
ICC prisoners
in Trinidad and
Tobago prisons
if ICC holds
sittings in
Trinidad and
Tobago.
Ch. 13:01.
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172. If the Minister is satisfied that the presence of an ICC
prisoner who was the subject of a direction under section 171(1)
is no longer necessary, sections 150 to 156 apply with any
necessary modifications to that person.
PART X
REQUESTS TO ICC FOR ASSISTANCE
173. The Attorney General may make a request to the ICC for
assistance in accordance with this Part in an investigation into, or
trial in respect of, conduct that may constitute a crime within the
jurisdiction of the ICC or that constitutes a crime for which the
maximum penalty under Trinidad and Tobago law is a term of
imprisonment of five years.
174. An urgent request for assistance may be made or
transmitted to the ICC in the manner specified in section 26(1).
175. A request may be made under this Part for any assistance
that the ICC may lawfully give including, without limitation—
(a) the transmission of statements, documents, or
other types of evidence obtained in the course
of an investigation or a trial conducted by the
ICC; and
(b) the questioning of any person detained by order
of the ICC.
176. The Mutual Assistance in Criminal Matters Act, applies,
with any necessary modifications, in relation to the request for
assistance of the kind specified in that Act, and any assistance
provided as a result, as if the ICC were a foreign country within
the meaning of that Act, subject to any contrary provision in the
Statute or the Rules.
177. The Extradition Act, applies, with any necessary
modifications, in relation to the surrender or temporary surrender
of a person by the ICC to Trinidad and Tobago, as if the ICC
were an extradition country within the meaning of that Act,
subject to any contrary provision in the Statute or the Rules.
Removal of
ICC prisoner.
Attorney
General may
request
assistance from
ICC.
Making a
request.
Types of
requests to ICC
Mutual
Assistance in
Criminal
Matters Act,
applies to
requests.
Ch. 11:24.
Extradition Act,
applies to
requests for
surrender.
Ch. 12:04.
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PART XI
MISCELLANEOUS PROVISIONS AND CONSEQUENTIAL
AMENDMENTS
Miscellaneous Provisions
178. (1) If the Attorney General receives a request for
assistance from the ICC to which Part V relates, the Attorney
General may give a certificate certifying all or any of the
following facts:
(a) that a request for assistance has been made by
the ICC;
(b) that the request meets the requirements of this
Act; and
(c) that the acceptance of the request has been duly
made under and in accordance with this Act.
(2) In any proceeding under this Act, a certificate
purporting to have been given under subsection (1) is, in the
absence of proof to the contrary, sufficient evidence of the matters
certified by the certificate.
179. The President may make Regulations for all or any of the
following purposes:
(a) prescribing the procedure to be followed in
dealing with requests made by the ICC, and
providing for notification of the results of action
taken in accordance with any such request;
(b) prescribing the procedures for obtaining
evidence or producing documents or other
articles in accordance with a request made by
the ICC;
(c) providing for the payment of fees, travelling
allowances, and expenses to any person in
Trinidad and Tobago who gives or provides
evidence or assistance pursuant to a request
made by the ICC;
(d) prescribing conditions for the protection of any
property sent to the ICC pursuant to a request
Certificates
given by
Attorney
General.
Regulations.
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made under this Act, and making provision for
the return of property in Trinidad and Tobago in
accordance with a request;
(e) prescribing the forms of applications, notices,
certificates, warrants, and other documents for
the purposes of this Act, and requiring the use
of such forms; and
(f) providing for any other matters contemplated
by this Act, necessary for its administration, or
necessary for giving it full effect.
180. Without limiting section 179, the President may make
Regulations to implement any obligation that is placed on States
Parties by the Rules of Procedure and Evidence if that obligation
is not inconsistent with the provisions of this Act.
181. (1) If a provision of this Act is inconsistent with a
provision of another Act, the provisions of this Act shall take
precedence and, to the extent of the inconsistency, the other Act
shall stand amended.
(2) Subsection (1) does not apply to—
(a) a provision of the Constitution; or
(b) an Act coming into force after the date that this
Act comes into force.
182. (1) The Genocide Act is repealed.
(2) Notwithstanding subsection (1), any action
commenced under the Genocide Act shall continue as if it had
been brought under this Act.
Regulations to
implement
Rules of
Procedure and
Evidence.
Consequential
implied
amendments.
Genocide Act
repealed.
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SCHEDULE
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT,
JULY 17, 1998
[as corrected by the procès-verbaux of 10 November 1998, 12 July
1999, 30 November 1999, 8 May 2000, 17 January 2001 and
16 January 2002]
PREAMBLE
THE STATES PARTIES TO THIS STATUTE,
Conscious that all peoples are united by common bonds, their cultures
pieced together in a shared heritage, and concerned that this delicate mosaic
may be shattered at any time,
Mindful that during this century millions of children, women and men
have been victims of unimaginable atrocities that deeply shock the
conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and well-
being of the world,
Affirming that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective
prosecution must be ensured by taking measures at the national level and by
enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes
and thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes,
Reaffirming the Purposes and Principles of the Charter of the United
Nations, and in particular that all States shall refrain from the threat or use of
force against the territorial integrity or political independence of any State, or
in any other manner inconsistent with the Purposes of the United Nations,
Emphasizing in this connection that nothing in this Statute shall be taken as
authorizing any State Party to intervene in an armed conflict or in the internal
affairs of any State,
Determined to these ends and for the sake of present and future generations,
to establish an independent permanent International Criminal Court in
relationship with the United Nations system, with jurisdiction over the most
serious crimes of concern to the international community as a whole,
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Emphasizing that the International Criminal Court established under this
Statute shall be complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of
international justice,
HAVE AGREED AS FOLLOWS:
PART 1—ESTABLISHMENT OF THE COURT
ARTICLE 1
The Court
An International Criminal Court (“the Court”) is hereby established. It shall
be a permanent institution and shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern, as referred
to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed
by the provisions of this Statute.
ARTICLE 2
Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United Nations
through an agreement to be approved by the Assembly of States Parties to this
Statute and thereafter concluded by the President of the Court on its behalf.
ARTICLE 3
Seat of the Court
1. The seat of the Court shall be established at The Hague in the
Netherlands (“the host State”).
2. The Court shall enter into a headquarters agreement with the host
State, to be approved by the Assembly of States Parties and thereafter
concluded by the President of the Court on its behalf.
3. The Court may sit elsewhere, whenever it considers it desirable, as
provided in this Statute.
ARTICLE 4
Legal status and powers of the Court
1. The Court shall have international legal personality. It shall also have
such legal capacity as may be necessary for the exercise of its functions and
the fulfilment of its purposes.
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2. The Court may exercise its functions and powers, as provided in this
Statute, on the territory of any State Party and, by special agreement, on the
territory of any other State.
PART 2—JURISDICTION, ADMISSIBILITY AND
APPLICABLE LAW
ARTICLE 5
Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious crimes
of concern to the international community as a whole. The Court has jurisdiction
in accordance with this Statute with respect to the following crimes:
(a) the crime of genocide;
(b) crimes against humanity;
(c) war crimes;
(d) the crime of aggression.
2. The Court shall exercise jurisdiction over the crime of aggression
once a provision is adopted in accordance with articles 121 and 123 defining
the crime and setting out the conditions under which the Court shall exercise
jurisdiction with respect to this crime. Such a provision shall be consistent
with the relevant provisions of the Charter of the United Nations.
ARTICLE 6
Genocide
For the purpose of this Statute, “genocide” means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or
in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
ARTICLE 7
Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means any
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of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation or forcible transfer of population;
(e) imprisonment or other severe deprivation of physical liberty
in violation of fundamental rules of international law;
(f) torture;
(g) rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of
comparable gravity;
(h) persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender as
defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in
connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
(i) enforced disappearance of persons;
(j) the crime of apartheid;
(k) other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental
or physical health.
2. For the purpose of paragraph 1—
(a) “Attack directed against any civilian population” means a
course of conduct involving the multiple commission of acts
referred to in paragraph 1 against any civilian population,
pursuant to or in furtherance of a State or organizational
policy to commit such attack;
(b) “Extermination” includes the intentional infliction of
conditions of life, inter alia the deprivation of access to food
and medicine, calculated to bring about the destruction of
part of a population;
(c) “Enslavement” means the exercise of any or all of the powers
attaching to the right of ownership over a person and
includes the exercise of such power in the course of
trafficking in persons, in particular women and children;
(d) “Deportation or forcible transfer of population” means
forced displacement of the persons concerned by expulsion
or other coercive acts from the area in which they are
lawfully present, without grounds permitted under
international law;
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(e) “Torture” means the intentional infliction of severe pain or
suffering, whether physical or mental, upon a person in the
custody or under the control of the accused; except that
torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions;
(f) “Forced pregnancy” means the unlawful confinement of a
woman forcibly made pregnant, with the intent of affecting
the ethnic composition of any population or carrying out
other grave violations of international law. This definition
shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(g) “Persecution” means the intentional and severe deprivation
of fundamental rights contrary to international law by reason
of the identity of the group or collectivity;
(h) “The crime of apartheid” means inhumane acts of a character
similar to those referred to in paragraph 1, committed in the
context of an institutionalized regime of systematic
oppression and domination by one racial group over any
other racial group or groups and committed with the
intention of maintaining that regime;
(i) “Enforced disappearance of persons” means the arrest,
detention or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a
political organization, followed by a refusal to acknowledge
that deprivation of freedom or to give information on the fate
or whereabouts of those persons, with the intention of
removing them from the protection of the law for a
prolonged period of time.
3. For the purpose of this Statute, it is understood that the term “gender”
refers to the two sexes, male and female, within the context of society. The
term “gender” does not indicate any meaning different from the above.
ARTICLE 8
War crimes
1. The Court shall have jurisdiction in respect of war crimes in
particular when committed as part of a plan or policy or as part of a large-scale
commission of such crimes.
2. For the purpose of this Statute, “war crimes” means—
(a) Grave breaches of the Geneva Conventions of 12 August 1949,
namely, any of the following acts against persons or property
protected under the provisions of the relevant Geneva Convention:
(i) wilful killing;
(ii) torture or inhuman treatment, including biological
experiments;
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(iii) wilfully causing great suffering, or serious injury to
body or health;
(iv) extensive destruction and appropriation of property,
not justified by military necessity and carried out
unlawfully and wantonly;
(v) compelling a prisoner of war or other protected person
to serve in the forces of a hostile power;
(vi) wilfully depriving a prisoner of war or other protected
person of the rights of fair and regular trial;
(vii) unlawful deportation or transfer or unlawful
confinement;
(viii) taking of hostages.
(b) Other serious violations of the laws and customs applicable in
international armed conflict, within the established framework
of international law, namely, any of the following acts:
(i) intentionally directing attacks against the civilian
population as such or against individual civilians not
taking direct part in hostilities;
(ii) intentionally directing attacks against civilian objects,
that is, objects which are not military objectives;
(iii) intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as
long as they are entitled to the protection given to
civilians or civilian objects under the international law
of armed conflict;
(iv) intentionally launching an attack in the knowledge
that such attack will cause incidental loss of life or
injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the
natural environment which would be clearly excessive
in relation to the concrete and direct overall military
advantage anticipated;
(v) attacking or bombarding, by whatever means, towns,
villages, dwellings or buildings which are undefended
and which are not military objectives;
(vi) killing or wounding a combatant who, having laid
down his arms or having no longer means of defence,
has surrendered at discretion;
(vii) making improper use of a flag of truce, of the flag or
of the military insignia and uniform of the enemy or
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of the United Nations, as well as of the distinctive
emblems of the Geneva Conventions, resulting in
death or serious personal injury;
(viii) the transfer, directly or indirectly, by the Occupying
Power of parts of its own civilian population into the
territory it occupies, or the deportation or transfer of
all or parts of the population of the occupied territory
within or outside this territory;
(ix) intentionally directing attacks against buildings
dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected,
provided they are not military objectives;
(x) subjecting persons who are in the power of an adverse
party to physical mutilation or to medical or scientific
experiments of any kind which are neither justified by
the medical, dental or hospital treatment of the person
concerned nor carried out in his or her interest, and
which cause death to or seriously endanger the health
of such person or persons;
(xi) killing or wounding treacherously individuals
belonging to the hostile nation or army;
(xii) declaring that no quarter will be given;
(xiii) destroying or seizing the enemy’s property unless
such destruction or seizure be imperatively demanded
by the necessities of war;
(xiv) declaring abolished, suspended or inadmissible in a
court of law the rights and actions of the nationals of
the hostile party;
(xv) compelling the nationals of the hostile party to take
part in the operations of war directed against their own
country, even if they were in the belligerent’s service
before the commencement of the war;
(xvi) pillaging a town or place, even when taken by assault;
(xvii) employing poison or poisoned weapons;
(xviii) employing asphyxiating, poisonous or other gases,
and all analogous liquids, materials or devices;
(xix) employing bullets which expand or flatten easily in
the human body, such as bullets with a hard envelope
which does not entirely cover the core or is pierced
with incisions;
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(xx) employing weapons, projectiles and material and
methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering or which
are inherently indiscriminate in violation of the
international law of armed conflict, provided that such
weapons, projectiles and material and methods of
warfare are the subject of a comprehensive prohibition
and are included in an annex to this Statute, by an
amendment in accordance with the relevant provisions
set forth in articles 121 and 123;
(xxi) committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
(xxii) committing rape, sexual slavery, enforced
prostitution, forced pregnancy, as defined in article 7,
paragraph 2(f), enforced sterilization, or any other
form of sexual violence also constituting a grave
breach of the Geneva Conventions;
(xxiii) utilizing the presence of a civilian or other protected
person to render certain points, areas or military
forces immune from military operations;
(xxiv) intentionally directing attacks against buildings,
material, medical units and transport, and personnel
using the distinctive emblems of the Geneva
Conventions in conformity with international law;
(xxv) intentionally using starvation of civilians as a method
of warfare by depriving them of objects indispensable
to their survival, including wilfully impeding relief
supplies as provided for under the Geneva
Conventions;
(xxvi) conscripting or enlisting children under the age of
fifteen years into the national armed forces or using
them to participate actively in hostilities.
(c) In the case of an armed conflict not of an international
character, serious violations of article 3 common to the four
Geneva Conventions of 12 August 1949, namely, any of the
following acts committed against persons taking no active
part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other cause:
(i) violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture;
(ii) committing outrages upon personal dignity, in
particular humiliating and degrading treatment;
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(iii) taking of hostages;
(iv) the passing of sentences and the carrying out of
executions without previous judgement pronounced
by a regularly constituted court, affording all
judicial guarantees which are generally recognized
as indispensable.
(d) Paragraph 2(c) applies to armed conflicts not of an
international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable
in armed conflicts not of an international character, within
the established framework of international law, namely, any
of the following acts:
(i) intentionally directing attacks against the civilian
population as such or against individual civilians not
taking direct part in hostilities;
(ii) intentionally directing attacks against buildings,
material, medical units and transport, and personnel
using the distinctive emblems of the Geneva
Conventions in conformity with international law;
(iii) intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as
long as they are entitled to the protection given to
civilians or civilian objects under the international law
of armed conflict;
(iv) intentionally directing attacks against buildings
dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected,
provided they are not military objectives;
(v) pillaging a town or place, even when taken by assault;
(vi) committing rape, sexual slavery, enforced prostitution,
forced pregnancy, as defined in article 7, paragraph 2(f),
enforced sterilization, and any other form of sexual
violence also constituting a serious violation of article 3
common to the four Geneva Conventions;
(vii) conscripting or enlisting children under the age of
fifteen years into armed forces or groups or using
them to participate actively in hostilities;
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(viii) ordering the displacement of the civilian population
for reasons related to the conflict, unless the security
of the civilians involved or imperative military
reasons so demand;
(ix) killing or wounding treacherously a combatant
adversary;
(x) declaring that no quarter will be given;
(xi) subjecting persons who are in the power of another
party to the conflict to physical mutilation or to
medical or scientific experiments of any kind which
are neither justified by the medical, dental or hospital
treatment of the person concerned nor carried out in his
or her interest, and which cause death to or seriously
endanger the health of such person or persons;
(xii) destroying or seizing the property of an adversary
unless such destruction or seizure be imperatively
demanded by the necessities of the conflict;
(f) Paragraph 2(e) applies to armed conflicts not of an
international character and thus does not apply to situations
of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a similar nature.
It applies to armed conflicts that take place in the territory of
a State when there is protracted armed conflict between
governmental authorities and organized armed groups or
between such groups.
3. Nothing in paragraph 2(c) and (e) shall affect the responsibility of a
Government to maintain or re-establish law and order in the State or to defend
the unity and territorial integrity of the State, by all legitimate means.
ARTICLE 9
Elements of Crimes
1. Elements of Crimes shall assist the Court in the interpretation and
application of articles 6, 7 and 8. They shall be adopted by a two-thirds
majority of the members of the Assembly of States Parties.
2. Amendments to the Elements of Crimes may be proposed by—
(a) any State Party;
(b) the Judges acting by an absolute majority;
(c) the Prosecutor.
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Such amendments shall be adopted by a two-thirds majority of the
members of the Assembly of States Parties.
3. The Elements of Crimes and amendments thereto shall be consistent
with this Statute.
Article 10
Nothing in this Part shall be interpreted as limiting or prejudicing in any
way existing or developing rules of international law for purposes other than
this Statute.
Article 11
Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes committed
after the entry into force of this Statute.
2. If a State becomes a Party to this Statute after its entry into force, the
Court may exercise its jurisdiction only with respect to crimes committed after
the entry into force of this Statute for that State, unless that State has made a
declaration under article 12, paragraph 3.
Article 12
Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise
its jurisdiction if one or more of the following States are Parties to this Statute
or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) the State on the territory of which the conduct in question
occurred or, if the crime was committed on board a vessel or
aircraft, the State of registration of that vessel or aircraft;
(b) the State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is
required under paragraph 2, that State may, by declaration lodged with the
Registrar, accept the exercise of jurisdiction by the Court with respect to the
crime in question. The accepting State shall cooperate with the Court without
any delay or exception in accordance with Part 9.
Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to
in article 5 in accordance with the provisions of this Statute if—
(a) a situation in which one or more of such crimes appears to
have been committed is referred to the Prosecutor by a State
Party in accordance with article 14;
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(b) a situation in which one or more of such crimes appears to
have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter of
the United Nations; or
(c) the Prosecutor has initiated an investigation in respect of
such a crime in accordance with article 15.
Article 14
Referral of a situation by a State Party
1. A State Party may refer to the Prosecutor a situation in which one or
more crimes within the jurisdiction of the Court appear to have been
committed requesting the Prosecutor to investigate the situation for the
purpose of determining whether one or more specific persons should be
charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant circumstances
and be accompanied by such supporting documentation as is available to the
State referring the situation.
Article 15
Prosecutor
1. The Prosecutor may initiate investigations proprio motu on the basis
of information on crimes within the jurisdiction of the Court.
2. The Prosecutor shall analyse the seriousness of the information
received. For this purpose, he or she may seek additional information from
States, organs of the United Nations, intergovernmental or non-governmental
organizations, or other reliable sources that he or she deems appropriate, and
may receive written or oral testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a reasonable basis to proceed
with an investigation, he or she shall submit to the Pre-Trial Chamber a request
for authorization of an investigation, together with any supporting material
collected. Victims may make representations to the Pre-Trial Chamber, in
accordance with the Rules of Procedure and Evidence.
4. If the Pre-Trial Chamber, upon examination of the request and the
supporting material, considers that there is a reasonable basis to proceed with
an investigation, and that the case appears to fall within the jurisdiction of the
Court, it shall authorize the commencement of the investigation, without
prejudice to subsequent determinations by the Court with regard to the
jurisdiction and admissibility of a case.
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5. The refusal of the Pre-Trial Chamber to authorize the investigation
shall not preclude the presentation of a subsequent request by the Prosecutor
based on new facts or evidence regarding the same situation.
6. If, after the preliminary examination referred to in paragraphs 1 and 2,
the Prosecutor concludes that the information provided does not constitute a
reasonable basis for an investigation, he or she shall inform those who provided
the information. This shall not preclude the Prosecutor from considering further
information submitted to him or her regarding the same situation in the light of
new facts or evidence.
ARTICLE 16
Deferral of investigation or prosecution
No investigation or prosecution may be commenced or proceeded with
under this Statute for a period of 12 months after the Security Council, in a
resolution adopted under Chapter VII of the Charter of the United Nations, has
requested the Court to that effect; that request may be renewed by the Council
under the same conditions.
ARTICLE 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the
Court shall determine that a case is inadmissible where—
(a) the case is being investigated or prosecuted by a State which
has jurisdiction over it, unless the State is unwilling or unable
genuinely to carry out the investigation or prosecution;
(b) the case has been investigated by a State which has
jurisdiction over it and the State has decided not to prosecute
the person concerned, unless the decision resulted from the
unwillingness or inability of the State genuinely to prosecute;
(c) the person concerned has already been tried for conduct
which is the subject of the complaint, and a trial by the Court
is not permitted under article 20, paragraph 3;
(d) the case is not of sufficient gravity to justify further action by
the Court.
2. In order to determine unwillingness in a particular case, the Court
shall consider, having regard to the principles of due process recognized by
international law, whether one or more of the following exist, as applicable:
(a) the proceedings were or are being undertaken or the national
decision was made for the purpose of shielding the person
concerned from criminal responsibility for crimes within the
jurisdiction of the Court referred to in article 5;
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(b) there has been an unjustified delay in the proceedings which
in the circumstances is inconsistent with an intent to bring
the person concerned to justice;
(c) the proceedings were not or are not being conducted independently
or impartially, and they were or are being conducted in a manner
which, in the circumstances, is inconsistent with an intent to bring
the person concerned to justice.
3. In order to determine inability in a particular case, the Court shall
consider whether, due to a total or substantial collapse or unavailability of its
national judicial system, the State is unable to obtain the accused or the necessary
evidence and testimony or otherwise unable to carry out its proceedings.
ARTICLE 18
Preliminary rulings regarding admissibility
1. When a situation has been referred to the Court pursuant to
article 13(a) and the Prosecutor has determined that there would be a
reasonable basis to commence an investigation, or the Prosecutor initiates
an investigation pursuant to articles 13(c) and 15, the Prosecutor shall
notify all States Parties and those States which, taking into account the
information available, would normally exercise jurisdiction over the crimes
concerned. The Prosecutor may notify such States on a confidential basis and,
where the Prosecutor believes it necessary to protect persons, prevent
destruction of evidence or prevent the absconding of persons, may limit the
scope of the information provided to States.
2. Within one month of receipt of that notification, a State may inform
the Court that it is investigating or has investigated its nationals or others
within its jurisdiction with respect to criminal acts which may constitute
crimes referred to in article 5 and which relate to the information provided in
the notification to States. At the request of that State, the Prosecutor shall defer
to the State’s investigation of those persons unless the Pre-Trial Chamber, on
the application of the Prosecutor, decides to authorize the investigation.
3. The Prosecutor’s deferral to a State’s investigation shall be open to
review by the Prosecutor six months after the date of deferral or at any time
when there has been a significant change of circumstances based on the State’s
unwillingness or inability genuinely to carry out the investigation.
4. The State concerned or the Prosecutor may appeal to the Appeals
Chamber against a ruling of the Pre-Trial Chamber, in accordance with
article 82. The appeal may be heard on an expedited basis.
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5. When the Prosecutor has deferred an investigation in accordance
with paragraph 2, the Prosecutor may request that the State concerned
periodically inform the Prosecutor of the progress of its investigations and
any subsequent prosecutions. States Parties shall respond to such requests
without undue delay.
6. Pending a ruling by the Pre-Trial Chamber, or at any time when the
Prosecutor has deferred an investigation under this article, the Prosecutor may,
on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue
necessary investigative steps for the purpose of preserving evidence where
there is a unique opportunity to obtain important evidence or there is a
significant risk that such evidence may not be subsequently available.
7. A State which has challenged a ruling of the Pre-Trial Chamber under
this article may challenge the admissibility of a case under article 19 on the
grounds of additional significant facts or significant change of circumstances.
ARTICLE 19
Challenges to the jurisdiction of the Court or the admissibility of a case
1. The Court shall satisfy itself that it has jurisdiction in any case
brought before it. The Court may, on its own motion, determine the
admissibility of a case in accordance with article 17.
2. Challenges to the admissibility of a case on the grounds referred to in
article 17 or challenges to the jurisdiction of the Court may be made by—
(a) an accused or a person for whom a warrant of arrest or a
summons to appear has been issued under article 58;
(b) a State which has jurisdiction over a case, on the ground that
it is investigating or prosecuting the case or has investigated
or prosecuted; or
(c) a State from which acceptance of jurisdiction is required
under article 12.
3. The Prosecutor may seek a ruling from the Court regarding a question
of jurisdiction or admissibility. In proceedings with respect to jurisdiction or
admissibility, those who have referred the situation under article 13, as well as
victims, may also submit observations to the Court.
4. The admissibility of a case or the jurisdiction of the Court may be
challenged only once by any person or State referred to in paragraph 2. The
challenge shall take place prior to or at the commencement of the trial. In
exceptional circumstances, the Court may grant leave for a challenge to be
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brought more than once or at a time later than the commencement of the trial.
Challenges to the admissibility of a case, at the commencement of a trial, or
subsequently with the leave of the Court, may be based only on article 17,
paragraph 1(c).
5. A State referred to in paragraph 2(b) and (c) shall make a challenge
at the earliest opportunity.
6. Prior to the confirmation of the charges, challenges to the
admissibility of a case or challenges to the jurisdiction of the Court shall be
referred to the Pre-Trial Chamber. After confirmation of the charges, they shall
be referred to the Trial Chamber. Decisions with respect to jurisdiction or
admissibility may be appealed to the Appeals Chamber in accordance with
article 82.
7. If a challenge is made by a State referred to in paragraph 2(b) or (c),
the Prosecutor shall suspend the investigation until such time as the Court
makes a determination in accordance with article 17.
8. Pending a ruling by the Court, the Prosecutor may seek authority
from the Court—
(a) to pursue necessary investigative steps of the kind referred to
in article 18, paragraph 6;
(b) to take a statement or testimony from a witness or complete
the collection and examination of evidence which had begun
prior to the making of the challenge; and
(c) in cooperation with the relevant States, to prevent the
absconding of persons in respect of whom the Prosecutor has
already requested a warrant of arrest under article 58.
9. The making of a challenge shall not affect the validity of any act
performed by the Prosecutor or any order or warrant issued by the Court prior
to the making of the challenge.
10. If the Court has decided that a case is inadmissible under article 17,
the Prosecutor may submit a request for a review of the decision when he or
she is fully satisfied that new facts have arisen which negate the basis on
which the case had previously been found inadmissible under article 17.
11. If the Prosecutor, having regard to the matters referred to in article 17,
defers an investigation, the Prosecutor may request that the relevant State make
available to the Prosecutor information on the proceedings. That information
shall, at the request of the State concerned, be confidential. If the Prosecutor
thereafter decides to proceed with an investigation, he or she shall notify the
State to which deferral of the proceedings has taken place.
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ARTICLE 20
Ne bis in idem
1. Except as provided in this Statute, no person shall be tried before the
Court with respect to conduct which formed the basis of crimes for which the
person has been convicted or acquitted by the Court.
2. No person shall be tried by another Court for a crime referred to in article 5
for which that person has already been convicted or acquitted by the Court.
3. No person who has been tried by another Court for conduct also
proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the
same conduct unless the proceedings in the other Court—
(a) were for the purpose of shielding the person concerned from
criminal responsibility for crimes within the jurisdiction of
the Court; or
(b) otherwise were not conducted independently or impartially
in accordance with the norms of due process recognized by
international law and were conducted in a manner which, in
the circumstances, was inconsistent with an intent to bring
the person concerned to justice.
ARTICLE 21
Applicable law
1. The Court shall apply—
(a) in the first place, this Statute, Elements of Crimes and its
Rules of Procedure and Evidence;
(b) in the second place, where appropriate, applicable treaties and
the principles and rules of international law, including the
established principles of the international law of armed conflict;
(c) failing that, general principles of law derived by the Court
from national laws of legal systems of the world including,
as appropriate, the national laws of States that would
normally exercise jurisdiction over the crime, provided that
those principles are not inconsistent with this Statute and
with international law and internationally recognized norms
and standards.
2. The Court may apply principles and rules of law as interpreted in its
previous decisions.
3. The application and interpretation of law pursuant to this article must
be consistent with internationally recognized human rights, and be without any
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adverse distinction founded on grounds such as gender as defined in article 7,
paragraph 3, age, race, colour, language, religion or belief, political or other
opinion, national, ethnic or social origin, wealth, birth or other status.
PART 3—GENERAL PRINCIPLES OF CRIMINAL LAW
ARTICLE 22
Nullum crimen sine lege
1. A person shall not be criminally responsible under this Statute unless
the conduct in question constitutes, at the time it takes place, a crime within
the jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and shall not be
extended by analogy. In case of ambiguity, the definition shall be interpreted
in favour of the person being investigated, prosecuted or convicted.
3. This article shall not affect the characterization of any conduct as
criminal under international law independently of this Statute.
ARTICLE 23
Nulla poena sine lege
A person convicted by the Court may be punished only in accordance with
this Statute.
ARTICLE 24
Non-retroactivity ratione personae
1. No person shall be criminally responsible under this Statute for
conduct prior to the entry into force of the Statute.
2. In the event of a change in the law applicable to a given case prior to
a final judgement, the law more favourable to the person being investigated,
prosecuted or convicted shall apply.
ARTICLE 25
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to
this Statute.
2. A person who commits a crime within the jurisdiction of the Court
shall be individually responsible and liable for punishment in accordance with
this Statute.
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3. In accordance with this Statute, a person shall be criminally
responsible and liable for punishment for a crime within the jurisdiction of the
Court if that person—
(a) commits such a crime, whether as an individual, jointly with
another or through another person, regardless of whether that
other person is criminally responsible;
(b) orders, solicits or induces the commission of such a crime
which in fact occurs or is attempted;
(c) for the purpose of facilitating the commission of such a
crime, aids, abets or otherwise assists in its commission or
its attempted commission, including providing the means
for its commission;
(d) in any other way contributes to the commission or attempted
commission of such a crime by a group of persons acting
with a common purpose. Such contribution shall be
intentional and shall either:
(i) be made with the aim of furthering the criminal
activity or criminal purpose of the group, where such
activity or purpose involves the commission of a
crime within the jurisdiction of the Court; or
(ii) be made in the knowledge of the intention of the
group to commit the crime;
(e) in respect of the crime of genocide, directly and publicly
incites others to commit genocide;
(f) attempts to commit such a crime by taking action that
commences its execution by means of a substantial step, but
the crime does not occur because of circumstances
independent of the person’s intentions. However, a person
who abandons the effort to commit the crime or otherwise
prevents the completion of the crime shall not be liable for
punishment under this Statute for the attempt to commit that
crime if that person completely and voluntarily gave up the
criminal purpose.
4. No provision in this Statute relating to individual criminal
responsibility shall affect the responsibility of States under international law.
ARTICLE 26
Exclusion of jurisdiction over persons under eighteen
The Court shall have no jurisdiction over any person who was under the age
of 18 at the time of the alleged commission of a crime.
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ARTICLE 27
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction
based on official capacity. In particular, official capacity as a Head of State or
Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of itself,
constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the
official capacity of a person, whether under national or international law, shall
not bar the Court from exercising its jurisdiction over such a person.
ARTICLE 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for
crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a
military commander shall be criminally responsible for
crimes within the jurisdiction of the Court committed by
forces under his or her effective command and control, or
effective authority and control as the case may be, as a result
of his or her failure to exercise control properly over such
forces, where:
(i) that military commander or person either knew or,
owing to the circumstances at the time, should have
known that the forces were committing or about to
commit such crimes; and
(ii) that military commander or person failed to take all
necessary and reasonable measures within his or her
power to prevent or repress their commission or to
submit the matter to the competent authorities for
investigation and prosecution.
(b) With respect to superior and subordinate relationships not
described in paragraph (a), a superior shall be criminally
responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective
authority and control, as a result of his or her failure to
exercise control properly over such subordinates, where:
(i) the superior either knew, or consciously disregarded
information which clearly indicated, that the
subordinates were committing or about to commit
such crimes;
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(ii) the crimes concerned activities that were within the
effective responsibility and control of the superior; and
(iii) the superior failed to take all necessary and reasonable
measures within his or her power to prevent or repress
their commission or to submit the matter to the
competent authorities for investigation and
prosecution.
ARTICLE 29
Non-applicability of statute of limitations
The crimes within the jurisdiction of the Court shall not be subject to any
statute of limitations.
ARTICLE 30
Mental element
1. Unless otherwise provided, a person shall be criminally responsible
and liable for punishment for a crime within the jurisdiction of the Court only
if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where—
(a) in relation to conduct, that person means to engage in the
conduct;
(b) in relation to a consequence, that person means to cause that
consequence or is aware that it will occur in the ordinary
course of events.
3. For the purposes of this article, “knowledge” means awareness that a
circumstance exists or a consequence will occur in the ordinary course of
events. “Know” and “knowingly” shall be construed accordingly.
ARTICLE 31
Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal responsibility
provided for in this Statute, a person shall not be criminally responsible if, at
the time of that person’s conduct—
(a) the person suffers from a mental disease or defect that
destroys that person’s capacity to appreciate the unlawfulness
or nature of his or her conduct, or capacity to control his or
her conduct to conform to the requirements of law;
(b) the person is in a state of intoxication that destroys that
person’s capacity to appreciate the unlawfulness or nature of
his or her conduct, or capacity to control his or her conduct
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to conform to the requirements of law, unless the person has
become voluntarily intoxicated under such circumstances
that the person knew, or disregarded the risk, that, as a result
of the intoxication, he or she was likely to engage in conduct
constituting a crime within the jurisdiction of the Court;
(c) the person acts reasonably to defend himself or herself or
another person or, in the case of war crimes, property which
is essential for the survival of the person or another person or
property which is essential for accomplishing a military
mission, against an imminent and unlawful use of force in a
manner proportionate to the degree of danger to the person or
the other person or property protected. The fact that the
person was involved in a defensive operation conducted by
forces shall not in itself constitute a ground for excluding
criminal responsibility under this subparagraph;
(d) the conduct which is alleged to constitute a crime within the
jurisdiction of the Court has been caused by duress resulting
from a threat of imminent death or of continuing or imminent
serious bodily harm against that person or another person,
and the person acts necessarily and reasonably to avoid this
threat, provided that the person does not intend to cause a
greater harm than the one sought to be avoided. Such a threat
may either be:
(i) made by other persons; or
(ii) constituted by other circumstances beyond that
person’s control.
2. The Court shall determine the applicability of the grounds for excluding
criminal responsibility provided for in this Statute to the case before it.
3. At trial, the Court may consider a ground for excluding criminal
responsibility other than those referred to in paragraph 1 where such a ground
is derived from applicable law as set forth in article 21. The procedures
relating to the consideration of such a ground shall be provided for in the Rules
of Procedure and Evidence.
ARTICLE 32
Mistake of fact or mistake of law
1. A mistake of fact shall be a ground for excluding criminal
responsibility only if it negates the mental element required by the crime.
2. A mistake of law as to whether a particular type of conduct is a crime
within the jurisdiction of the Court shall not be a ground for excluding
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criminal responsibility. A mistake of law may, however, be a ground for
excluding criminal responsibility if it negates the mental element required by
such a crime, or as provided for in article 33.
ARTICLE 33
Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a Government or of a superior,
whether military or civilian, shall not relieve that person of criminal
responsibility unless—
(a) the person was under a legal obligation to obey orders of the
Government or the superior in question;
(b) the person did not know that the order was unlawful; and
(c) the order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes
against humanity are manifestly unlawful.
PART 4—COMPOSITION AND ADMINISTRATION OF
THE COURT
ARTICLE 34
Organs of the Court
The Court shall be composed of the following organs:
(a) the Presidency;
(b) an Appeals Division, a Trial Division and a Pre-Trial
Division;
(c) the Office of the Prosecutor;
(d) the Registry.
ARTICLE 35
Service of Judges
1. All Judges shall be elected as full-time members of the Court and
shall be available to serve on that basis from the commencement of their terms
of office.
2. The Judges composing the Presidency shall serve on a full-time basis
as soon as they are elected.
3. The Presidency may, on the basis of the workload of the Court and in
consultation with its members, decide from time to time to what extent the
remaining Judges shall be required to serve on a full-time basis. Any such
arrangement shall be without prejudice to the provisions of article 40.
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4. The financial arrangements for Judges not required to serve on a full-
time basis shall be made in accordance with article 49.
ARTICLE 36
Qualifications, nomination and election of Judges
1. Subject to the provisions of paragraph 2, there shall be 18 Judges of
the Court.
2. (a) The Presidency, acting on behalf of the Court, may propose an
increase in the number of Judges specified in paragraph 1, indicating the
reasons why this is considered necessary and appropriate. The Registrar shall
promptly circulate any such proposal to all States Parties.
(b) Any such proposal shall then be considered at a meeting of the
Assembly of States Parties to be convened in accordance with article 112. The
proposal shall be considered adopted if approved at the meeting by a vote of two
thirds of the members of the Assembly of States Parties and shall enter into force
at such time as decided by the Assembly of States Parties.
(c) (i) Once a proposal for an increase in the number of Judges has
been adopted under subparagraph (b), the election of the additional Judges
shall take place at the next session of the Assembly of States Parties in
accordance with paragraphs 3 to 8, and article 37, paragraph 2;
(ii) Once a proposal for an increase in the number of Judges has
been adopted and brought into effect under subparagraphs (b) and (c)(i), it
shall be open to the Presidency at any time thereafter, if the workload of the
Court justifies it, to propose a reduction in the number of Judges, provided that
the number of Judges shall not be reduced below that specified in paragraph 1.
The proposal shall be dealt with in accordance with the procedure laid down
in subparagraphs (a) and (b). In the event that the proposal is adopted, the
number of Judges shall be progressively decreased as the terms of office of
serving Judges expire, until the necessary number has been reached.
3. (a) The Judges shall be chosen from among persons of high moral
character, impartiality and integrity who possess the qualifications required in
their respective States for appointment to the highest judicial offices.
(b) Every candidate for election to the Court shall—
(i) have established competence in criminal law and
procedure, and the necessary relevant experience, whether
as Judge, prosecutor, advocate or in other similar capacity,
in criminal proceedings; or
(ii) have established competence in relevant areas of
international law such as international humanitarian law
and the law of human rights, and extensive experience in a
professional legal capacity which is of relevance to the
judicial work of the Court;
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(c) Every candidate for election to the Court shall have an
excellent knowledge of and be fluent in at least one of the working
languages of the Court.
4. (a) Nominations of candidates for election to the Court may be
made by any State Party to this Statute, and shall be made either—
(i) by the procedure for the nomination of candidates for
appointment to the highest judicial offices in the State in
question; or
(ii) by the procedure provided for the nomination of
candidates for the International Court of Justice in the
Statute of that Court.
Nominations shall be accompanied by a statement in the necessary detail
specifying how the candidate fulfils the requirements of paragraph 3.
(b) Each State Party may put forward one candidate for any given
election who need not necessarily be a national of that State Party but shall in
any case be a national of a State Party.
(c) The Assembly of States Parties may decide to establish, if
appropriate, an Advisory Committee on nominations. In that event, the
Committee’s composition and mandate shall be established by the Assembly
of States Parties.
5. For the purposes of the election, there shall be two lists of candidates:
List A containing the names of candidates with the
qualifications specified in paragraph 3(b)(i); and
List B containing the names of candidates with the
qualifications specified in paragraph 3(b)(ii).
A candidate with sufficient qualifications for both lists may choose on
which list to appear. At the first election to the Court, at least nine Judges shall
be elected from list A and at least five Judges from list B. Subsequent elections
shall be so organized as to maintain the equivalent proportion on the Court of
Judges qualified on the two lists.
6. (a) The Judges shall be elected by secret ballot at a meeting of the
Assembly of States Parties convened for that purpose under article 112.
Subject to paragraph 7, the persons elected to the Court shall be the 18
candidates who obtain the highest number of votes and a two-thirds majority
of the States Parties present and voting.
(b) In the event that a sufficient number of Judges is not elected on
the first ballot, successive ballots shall be held in accordance with the procedures
laid down in subparagraph (a) until the remaining places have been filled.
7. No two Judges may be nationals of the same State. A person who, for
the purposes of membership of the Court, could be regarded as a national of
more than one State shall be deemed to be a national of the State in which that
person ordinarily exercises civil and political rights.
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8. (a) The States Parties shall, in the selection of Judges, take into
account the need, within the membership of the Court, for—
(i) the representation of the principal legal systems of the
world;
(ii) equitable geographical representation; and
(iii) a fair representation of female and male Judges.
(b) States Parties shall also take into account the need to include
Judges with legal expertise on specific issues, including, but not limited to,
violence against women or children.
9. (a) Subject to subparagraph (b), Judges shall hold office for a term of
nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall
not be eligible for re-election.
(b) At the first election, one-third of the Judges elected shall be
selected by lot to serve for a term of three years; one-third of the Judges elected
shall be selected by lot to serve for a term of six years; and the remainder shall
serve for a term of nine years.
(c) A Judge who is selected to serve for a term of three years under
subparagraph (b) shall be eligible for re-election for a full term.
10. Notwithstanding paragraph 9, a Judge assigned to a Trial or Appeals
Chamber in accordance with article 39 shall continue in office to complete any
trial or appeal the hearing of which has already commenced before that Chamber.
ARTICLE 37
Judicial vacancies
1. In the event of a vacancy, an election shall be held in accordance with
article 36 to fill the vacancy.
2. A Judge elected to fill a vacancy shall serve for the remainder of the
predecessor’s term and, if that period is three years or less, shall be eligible for
re-election for a full term under article 36.
ARTICLE 38
The Presidency
1. The President and the First and Second Vice-Presidents shall be
elected by an absolute majority of the Judges. They shall each serve for a term
of three years or until the end of their respective terms of office as Judges,
whichever expires earlier. They shall be eligible for re-election once.
2. The First Vice-President shall act in place of the President in the
event that the President is unavailable or disqualified. The Second Vice-
President shall act in place of the President in the event that both the President
and the First Vice-President are unavailable or disqualified.
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3. The President, together with the First and Second Vice-Presidents,
shall constitute the Presidency, which shall be responsible for—
(a) the proper administration of the Court, with the exception of
the Office of the Prosecutor; and
(b) the other functions conferred upon it in accordance with this
Statute.
4. In discharging its responsibility under paragraph 3(a), the Presidency
shall coordinate with and seek the concurrence of the Prosecutor on all matters
of mutual concern.
ARTICLE 39
Chambers
1. As soon as possible after the election of the Judges, the Court shall
organize itself into the divisions specified in article 34, paragraph (b). The
Appeals Division shall be composed of the President and four other Judges, the
Trial Division of not less than six Judges and the Pre-Trial Division of not less
than six Judges. The assignment of Judges to divisions shall be based on the
nature of the functions to be performed by each division and the qualifications
and experience of the Judges elected to the Court, in such a way that each
division shall contain an appropriate combination of expertise in criminal law
and procedure and in international law. The Trial and Pre-Trial Divisions shall
be composed predominantly of Judges with criminal trial experience.
2. (a) The judicial functions of the Court shall be carried out in each
division by Chambers.
(b) (i) The Appeals Chamber shall be composed of all the Judges
of the Appeals Division;
(ii) The functions of the Trial Chamber shall be carried out by
three Judges of the Trial Division;
(iii) The functions of the Pre-Trial Chamber shall be carried out
either by three Judges of the Pre-Trial Division or by a
single Judge of that division in accordance with this Statute
and the Rules of Procedure and Evidence.
(c) Nothing in this paragraph shall preclude the simultaneous
constitution of more than one Trial Chamber or Pre-Trial Chamber when the
efficient management of the Court’s workload so requires.
3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall serve
in those divisions for a period of three years, and thereafter until the
completion of any case the hearing of which has already commenced in the
division concerned.
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(b) Judges assigned to the Appeals Division shall serve in that
division for their entire term of office.
4. Judges assigned to the Appeals Division shall serve only in that
division. Nothing in this article shall, however, preclude the temporary
attachment of Judges from the Trial Division to the Pre-Trial Division or vice
versa, if the Presidency considers that the efficient management of the Court’s
workload so requires, provided that under no circumstances shall a Judge who
has participated in the pre-trial phase of a case be eligible to sit on the Trial
Chamber hearing that case.
ARTICLE 40
Independence of the Judges
1. The Judges shall be independent in the performance of their functions.
2. Judges shall not engage in any activity which is likely to interfere
with their judicial functions or to affect confidence in their independence.
3. Judges required to serve on a full-time basis at the seat of the Court
shall not engage in any other occupation of a professional nature.
4. Any question regarding the application of paragraphs 2 and 3 shall be
decided by an absolute majority of the Judges. Where any such question
concerns an individual Judge, that Judge shall not take part in the decision.
ARTICLE 41
Excusing and disqualification of Judges
1. The Presidency may, at the request of a Judge, excuse that Judge from
the exercise of a function under this Statute, in accordance with the Rules of
Procedure and Evidence.
2. (a) A Judge shall not participate in any case in which his or her
impartiality might reasonably be doubted on any ground. A Judge shall be
disqualified from a case in accordance with this paragraph if, inter alia, that
Judge has previously been involved in any capacity in that case before the
Court or in a related criminal case at the national level involving the person
being investigated or prosecuted. A Judge shall also be disqualified on such
other grounds as may be provided for in the Rules of Procedure and Evidence.
(b) The Prosecutor or the person being investigated or prosecuted
may request the disqualification of a Judge under this paragraph.
(c) Any question as to the disqualification of a Judge shall be
decided by an absolute majority of the Judges. The challenged Judge shall be
entitled to present his or her comments on the matter, but shall not take part in
the decision.
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ARTICLE 42
The Office of the Prosecutor
1. The Office of the Prosecutor shall act independently as a separate
organ of the Court. It shall be responsible for receiving referrals and any
substantiated information on crimes within the jurisdiction of the Court, for
examining them and for conducting investigations and prosecutions before the
Court. A member of the Office shall not seek or act on instructions from any
external source.
2. The Office shall be headed by the Prosecutor. The Prosecutor shall
have full authority over the management and administration of the Office,
including the staff, facilities and other resources thereof. The Prosecutor shall
be assisted by one or more Deputy Prosecutors, who shall be entitled to carry
out any of the acts required of the Prosecutor under this Statute. The
Prosecutor and the Deputy Prosecutors shall be of different nationalities. They
shall serve on a full-time basis.
3. The Prosecutor and the Deputy Prosecutors shall be persons of high
moral character, be highly competent in and have extensive practical
experience in the prosecution or trial of criminal cases. They shall have an
excellent knowledge of and be fluent in at least one of the working languages
of the Court.
4. The Prosecutor shall be elected by secret ballot by an absolute
majority of the members of the Assembly of States Parties. The Deputy
Prosecutors shall be elected in the same way from a list of candidates provided
by the Prosecutor. The Prosecutor shall nominate three candidates for each
position of Deputy Prosecutor to be filled. Unless a shorter term is decided
upon at the time of their election, the Prosecutor and the Deputy Prosecutors
shall hold office for a term of nine years and shall not be eligible for
re-election.
5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any
activity which is likely to interfere with his or her prosecutorial functions or to
affect confidence in his or her independence. They shall not engage in any
other occupation of a professional nature.
6. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at
his or her request, from acting in a particular case.
7. Neither the Prosecutor nor a Deputy Prosecutor shall participate in
any matter in which their impartiality might reasonably be doubted on any
ground. They shall be disqualified from a case in accordance with this
paragraph if, inter alia, they have previously been involved in any capacity in
that case before the Court or in a related criminal case at the national level
involving the person being investigated or prosecuted.
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8. Any question as to the disqualification of the Prosecutor or a Deputy
Prosecutor shall be decided by the Appeals Chamber.
(a) The person being investigated or prosecuted may at any time
request the disqualification of the Prosecutor or a Deputy Prosecutor on the
grounds set out in this article.
(b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall
be entitled to present his or her comments on the matter.
9. The Prosecutor shall appoint advisers with legal expertise on specific
issues, including, but not limited to, sexual and gender violence and violence
against children.
ARTICLE 43
The Registry
1. The Registry shall be responsible for the non-judicial aspects of the
administration and servicing of the Court, without prejudice to the functions
and powers of the Prosecutor in accordance with article 42.
2. The Registry shall be headed by the Registrar, who shall be the
principal administrative officer of the Court. The Registrar shall exercise his
or her functions under the authority of the President of the Court.
3. The Registrar and the Deputy Registrar shall be persons of high
moral character, be highly competent and have an excellent knowledge of and
be fluent in at least one of the working languages of the Court.
4. The Judges shall elect the Registrar by an absolute majority by secret
ballot, taking into account any recommendation by the Assembly of States
Parties. If the need arises and upon the recommendation of the Registrar, the
Judges shall elect, in the same manner, a Deputy Registrar.
5. The Registrar shall hold office for a term of five years, shall be
eligible for re-election once and shall serve on a full-time basis. The Deputy
Registrar shall hold office for a term of five years or such shorter term as may
be decided upon by an absolute majority of the Judges, and may be elected on
the basis that the Deputy Registrar shall be called upon to serve as required.
6. The Registrar shall set up a Victims and Witnesses Unit within the
Registry. This Unit shall provide, in consultation with the Office of the
Prosecutor, protective measures and security arrangements, counselling and
other appropriate assistance for witnesses, victims who appear before the
Court, and others who are at risk on account of testimony given by such
witnesses. The Unit shall include staff with expertise in trauma, including
trauma related to crimes of sexual violence.
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ARTICLE 44
Staff
1. The Prosecutor and the Registrar shall appoint such qualified staff as
may be required to their respective offices. In the case of the Prosecutor, this
shall include the appointment of investigators.
2. In the employment of staff, the Prosecutor and the Registrar shall
ensure the highest standards of efficiency, competency and integrity, and shall
have regard, mutatis mutandis, to the criteria set forth in article 36, paragraph 8.
3. The Registrar, with the agreement of the Presidency and the
Prosecutor, shall propose Staff Regulations which include the terms and
conditions upon which the staff of the Court shall be appointed, remunerated
and dismissed. The Staff Regulations shall be approved by the Assembly of
States Parties.
4. The Court may, in exceptional circumstances, employ the expertise
of gratis personnel offered by States Parties, intergovernmental organizations
or non-governmental organizations to assist with the work of any of the organs
of the Court. The Prosecutor may accept any such offer on behalf of the Office
of the Prosecutor. Such gratis personnel shall be employed in accordance with
guidelines to be established by the Assembly of States Parties.
ARTICLE 45
Solemn undertaking
Before taking up their respective duties under this Statute, the Judges, the
Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar
shall each make a solemn undertaking in open Court to exercise his or her
respective functions impartially and conscientiously.
ARTICLE 46
Removal from office
1. A Judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the
Deputy Registrar shall be removed from office if a decision to this effect is
made in accordance with paragraph 2, in cases where that person—
(a) is found to have committed serious misconduct or a serious
breach of his or her duties under this Statute, as provided for
in the Rules of Procedure and Evidence; or
(b) is unable to exercise the functions required by this Statute.
2. A decision as to the removal from office of a Judge, the Prosecutor or
a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of
States Parties, by secret ballot—
(a) in the case of a Judge, by a two-thirds majority of the States
Parties upon a recommendation adopted by a two-thirds
majority of the other Judges;
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(b) in the case of the Prosecutor, by an absolute majority of the
States Parties;
(c) in the case of a Deputy Prosecutor, by an absolute majority
of the States Parties upon the recommendation of the
Prosecutor.
3. A decision as to the removal from office of the Registrar or Deputy
Registrar shall be made by an absolute majority of the Judges.
4. A Judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy
Registrar whose conduct or ability to exercise the functions of the office as
required by this Statute is challenged under this article shall have full
opportunity to present and receive evidence and to make submissions in
accordance with the Rules of Procedure and Evidence. The person in question
shall not otherwise participate in the consideration of the matter.
ARTICLE 47
Disciplinary measures
A Judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar
who has committed misconduct of a less serious nature than that set out in
article 46, paragraph 1, shall be subject to disciplinary measures, in
accordance with the Rules of Procedure and Evidence.
ARTICLE 48
Privileges and immunities
1. The Court shall enjoy in the territory of each State Party such
privileges and immunities as are necessary for the fulfilment of its purposes.
2. The Judges, the Prosecutor, the Deputy Prosecutors and the Registrar
shall, when engaged on or with respect to the business of the Court, enjoy the
same privileges and immunities as are accorded to heads of diplomatic
missions and shall, after the expiry of their terms of office, continue to be
accorded immunity from legal process of every kind in respect of words
spoken or written and acts performed by them in their official capacity.
3. The Deputy Registrar, the staff of the Office of the Prosecutor and the
staff of the Registry shall enjoy the privileges and immunities and facilities
necessary for the performance of their functions, in accordance with the
agreement on the privileges and immunities of the Court.
4. Counsel, experts, witnesses or any other person required to be present
at the seat of the Court shall be accorded such treatment as is necessary for the
proper functioning of the Court, in accordance with the agreement on the
privileges and immunities of the Court.
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5. The privileges and immunities of—
(a) a Judge or the Prosecutor may be waived by an absolute
majority of the Judges;
(b) the Registrar may be waived by the Presidency;
(c) the Deputy Prosecutors and staff of the Office of the
Prosecutor may be waived by the Prosecutor;
(d) the Deputy Registrar and staff of the Registry may be waived
by the Registrar.
ARTICLE 49
Salaries, allowances and expenses
The Judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the
Deputy Registrar shall receive such salaries, allowances and expenses as may
be decided upon by the Assembly of States Parties. These salaries and
allowances shall not be reduced during their terms of office.
ARTICLE 50
Official and working languages
1. The official languages of the Court shall be Arabic, Chinese, English,
French, Russian and Spanish. The judgements of the Court, as well as other
decisions resolving fundamental issues before the Court, shall be published in
the official languages. The Presidency shall, in accordance with the criteria
established by the Rules of Procedure and Evidence, determine which
decisions may be considered as resolving fundamental issues for the purposes
of this paragraph.
2. The working languages of the Court shall be English and French. The
Rules of Procedure and Evidence shall determine the cases in which other
official languages may be used as working languages.
3. At the request of any party to a proceeding or a State allowed to
intervene in a proceeding, the Court shall authorize a language other than
English or French to be used by such a party or State, provided that the Court
considers such authorization to be adequately justified.
ARTICLE 51
Rules of Procedure and Evidence
1. The Rules of Procedure and Evidence shall enter into force upon adoption
by a two-thirds majority of the members of the Assembly of States Parties.
2. Amendments to the Rules of Procedure and Evidence may be
proposed by—
(a) any State Party;
(b) the Judges acting by an absolute majority; or
(c) the Prosecutor.
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Such amendments shall enter into force upon adoption by a two-thirds
majority of the members of the Assembly of States Parties.
3. After the adoption of the Rules of Procedure and Evidence, in urgent
cases where the Rules do not provide for a specific situation before the Court,
the Judges may, by a two-thirds majority, draw up provisional Rules to be
applied until adopted, amended or rejected at the next ordinary or special
session of the Assembly of States Parties.
4. The Rules of Procedure and Evidence, amendments thereto and any
provisional Rule shall be consistent with this Statute. Amendments to the
Rules of Procedure and Evidence as well as provisional Rules shall not be
applied retroactively to the detriment of the person who is being investigated
or prosecuted or who has been convicted.
5. In the event of conflict between the Statute and the Rules of
Procedure and Evidence, the Statute shall prevail.
ARTICLE 52
Regulations of the Court
1. The Judges shall, in accordance with this Statute and the Rules of
Procedure and Evidence, adopt, by an absolute majority, the Regulations of the
Court necessary for its routine functioning.
2. The Prosecutor and the Registrar shall be consulted in the elaboration
of the Regulations and any amendments thereto.
3. The Regulations and any amendments thereto shall take effect upon
adoption unless otherwise decided by the Judges. Immediately upon adoption,
they shall be circulated to States Parties for comments. If within six months there
are no objections from a majority of States Parties, they shall remain in force.
PART 5—INVESTIGATION AND PROSECUTION
ARTICLE 53
Initiation of an investigation
1. The Prosecutor shall, having evaluated the information made
available to him or her, initiate an investigation unless he or she determines
that there is no reasonable basis to proceed under this Statute. In deciding
whether to initiate an investigation, the Prosecutor shall consider whether—
(a) the information available to the Prosecutor provides a
reasonable basis to believe that a crime within the
jurisdiction of the Court has been or is being committed;
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(b) the case is or would be admissible under article 17; and
(c) taking into account the gravity of the crime and the interests
of victims, there are nonetheless substantial reasons to believe
that an investigation would not serve the interests of justice.
If the Prosecutor determines that there is no reasonable basis to proceed
and his or her determination is based solely on subparagraph (c) above, he or
she shall inform the Pre-Trial Chamber.
2. If, upon investigation, the Prosecutor concludes that there is not a
sufficient basis for a prosecution because—
(a) there is not a sufficient legal or factual basis to seek a warrant
or summons under article 58;
(b) the case is inadmissible under article 17; or
(c) a prosecution is not in the interests of justice, taking into
account all the circumstances, including the gravity of the
crime, the interests of victims and the age or infirmity of the
alleged perpetrator, and his or her role in the alleged crime,
the Prosecutor shall inform the Pre-Trial Chamber and the State making a
referral under article 14 or the Security Council in a case under article 13,
paragraph (b), of his or her conclusion and the reasons for the conclusion.
3. (a) At the request of the State making a referral under article 14 or
the Security Council under article 13, paragraph (b), the Pre-Trial Chamber
may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed
and may request the Prosecutor to reconsider that decision.
(b) In addition, the Pre-Trial Chamber may, on its own initiative,
review a decision of the Prosecutor not to proceed if it is based solely on
paragraph 1(c) or 2(c). In such a case, the decision of the Prosecutor shall be
effective only if confirmed by the Pre-Trial Chamber.
4. The Prosecutor may, at any time, reconsider a decision whether to
initiate an investigation or prosecution based on new facts or information.
ARTICLE 54
Duties and powers of the Prosecutor with respect to investigations
1. The Prosecutor shall—
(a) In order to establish the truth, extend the investigation to
cover all facts and evidence relevant to an assessment of
whether there is criminal responsibility under this Statute,
and, in doing so, investigate incriminating and exonerating
circumstances equally;
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(b) Take appropriate measures to ensure the effective
investigation and prosecution of crimes within the
jurisdiction of the Court, and in doing so, respect the interests
and personal circumstances of victims and witnesses,
including age, gender as defined in article 7, paragraph 3,
and health, and take into account the nature of the crime, in
particular where it involves sexual violence, gender violence
or violence against children; and
(c) Fully respect the rights of persons arising under this Statute.
2. The Prosecutor may conduct investigations on the territory of a State—
(a) in accordance with the provisions of Part 9; or
(b) as authorized by the Pre-Trial Chamber under article 57,
paragraph 3(d).
3. The Prosecutor may—
(a) collect and examine evidence;
(b) request the presence of and question persons being
investigated, victims and witnesses;
(c) seek the cooperation of any State or intergovernmental
organization or arrangement in accordance with its
respective competence and/or mandate;
(d) enter into such arrangements or agreements, not inconsistent
with this Statute, as may be necessary to facilitate the
cooperation of a State, intergovernmental organization or person;
(e) agree not to disclose, at any stage of the proceedings,
documents or information that the Prosecutor obtains on the
condition of confidentiality and solely for the purpose of
generating new evidence, unless the provider of the
information consents; and
(f) take necessary measures, or request that necessary measures
be taken, to ensure the confidentiality of information, the
protection of any person or the preservation of evidence.
ARTICLE 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person—
(a) shall not be compelled to incriminate himself or herself or to
confess guilt;
(b) shall not be subjected to any form of coercion, duress or
threat, to torture or to any other form of cruel, inhuman or
degrading treatment or punishment;
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(c) shall, if questioned in a language other than a language the
person fully understands and speaks, have, free of any cost,
the assistance of a competent interpreter and such translations
as are necessary to meet the requirements of fairness; and
(d) shall not be subjected to arbitrary arrest or detention, and
shall not be deprived of his or her liberty except on such
grounds and in accordance with such procedures as are
established in this Statute.
2. Where there are grounds to believe that a person has committed a
crime within the jurisdiction of the Court and that person is about to be
questioned either by the Prosecutor, or by national authorities pursuant to a
request made under Part 9, that person shall also have the following rights of
which he or she shall be informed prior to being questioned:
(a) to be informed, prior to being questioned, that there are
grounds to believe that he or she has committed a crime
within the jurisdiction of the Court;
(b) to remain silent, without such silence being a consideration
in the determination of guilt or innocence;
(c) to have legal assistance of the person’s choosing, or, if the
person does not have legal assistance, to have legal
assistance assigned to him or her, in any case where the
interests of justice so require, and without payment by the
person in any such case if the person does not have sufficient
means to pay for it; and
(d) to be questioned in the presence of counsel unless the person
has voluntarily waived his or her right to counsel.
ARTICLE 56
Role of the Pre-Trial Chamber in relation to a unique investigative
opportunity
1. (a) Where the Prosecutor considers an investigation to present a
unique opportunity to take testimony or a statement from a witness or to
examine, collect or test evidence, which may not be available subsequently for
the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.
(b) In that case, the Pre-Trial Chamber may, upon request of the
Prosecutor, take such measures as may be necessary to ensure the efficiency and
integrity of the proceedings and, in particular, to protect the rights of the defence.
(c) Unless the Pre-Trial Chamber orders otherwise, the
Prosecutor shall provide the relevant information to the person who has
been arrested or appeared in response to a summons in connection with the
investigation referred to in subparagraph (a), in order that he or she may
be heard on the matter.
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2. The measures referred to in paragraph 1(b) may include—
(a) making recommendations or orders regarding procedures to be
followed;
(b) directing that a record be made of the proceedings;
(c) appointing an expert to assist;
(d) authorizing counsel for a person who has been arrested, or appeared
before the Court in response to a summons, to participate, or where
there has not yet been such an arrest or appearance or counsel has
not been designated, appointing another counsel to attend and
represent the interests of the defence;
(e) naming one of its members or, if necessary, another available
Judge of the Pre-Trial or Trial Division to observe and make
recommendations or orders regarding the collection and
preservation of evidence and the questioning of persons;
(f) taking such other action as may be necessary to collect or
preserve evidence.
3. (a) Where the Prosecutor has not sought measures pursuant to this
article but the Pre-Trial Chamber considers that such measures are required to
preserve evidence that it deems would be essential for the defence at trial, it
shall consult with the Prosecutor as to whether there is good reason for the
Prosecutor’s failure to request the measures. If upon consultation, the Pre-
Trial Chamber concludes that the Prosecutor’s failure to request such measures
is unjustified, the Pre-Trial Chamber may take such measures on its own
initiative.
(b) A decision of the Pre-Trial Chamber to act on its own initiative
under this paragraph may be appealed by the Prosecutor. The appeal shall be
heard on an expedited basis.
4. The admissibility of evidence preserved or collected for trial pursuant
to this article, or the record thereof, shall be governed at trial by article 69, and
given such weight as determined by the Trial Chamber.
ARTICLE 57
Functions and powers of the Pre-Trial Chamber
1. Unless otherwise provided in this Statute, the Pre-Trial Chamber
shall exercise its functions in accordance with the provisions of this article.
2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles
15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by
a majority of its Judges.
(b) In all other cases, a single Judge of the Pre-Trial Chamber
may exercise the functions provided for in this Statute, unless otherwise
provided for in the Rules of Procedure and Evidence or by a majority of the
Pre-Trial Chamber.
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3. In addition to its other functions under this Statute, the Pre-Trial
Chamber may—
(a) at the request of the Prosecutor, issue such orders and
warrants as may be required for the purposes of an
investigation;
(b) upon the request of a person who has been arrested or has
appeared pursuant to a summons under article 58, issue such
orders, including measures such as those described in article 56,
or seek such cooperation pursuant to Part 9 as may be necessary
to assist the person in the preparation of his or her defence;
(c) where necessary, provide for the protection and privacy of
victims and witnesses, the preservation of evidence, the
protection of persons who have been arrested or appeared in
response to a summons, and the protection of national
security information;
(d) authorize the Prosecutor to take specific investigative steps
within the territory of a State Party without having secured
the cooperation of that State under Part 9 if, whenever
possible having regard to the views of the State concerned,
the Pre-Trial Chamber has determined in that case that the
State is clearly unable to execute a request for cooperation due
to the unavailability of any authority or any component of
its judicial system competent to execute the request for
cooperation under Part 9;
(e) where a warrant of arrest or a summons has been issued under
article 58, and having due regard to the strength of the
evidence and the rights of the parties concerned, as provided
for in this Statute and the Rules of Procedure and Evidence,
seek the cooperation of States pursuant to article 93,
paragraph 1(k), to take protective measures for the purpose of
forfeiture, in particular for the ultimate benefit of victims.
ARTICLE 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a
summons to appear
1. At any time after the initiation of an investigation, the Pre-Trial
Chamber shall, on the application of the Prosecutor, issue a warrant of arrest
of a person if, having examined the application and the evidence or other
information submitted by the Prosecutor, it is satisfied that—
(a) there are reasonable grounds to believe that the person has
committed a crime within the jurisdiction of the Court; and
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(b) the arrest of the person appears necessary—
(i) to ensure the person’s appearance at trial,
(ii) to ensure that the person does not obstruct or endanger
the investigation or the Court proceedings, or
(iii) where applicable, to prevent the person from
continuing with the commission of that crime or a
related crime which is within the jurisdiction of the
Court and which arises out of the same circumstances.
2. The application of the Prosecutor shall contain—
(a) the name of the person and any other relevant identifying
information;
(b) a specific reference to the crimes within the jurisdiction of the
Court which the person is alleged to have committed;
(c) a concise statement of the facts which are alleged to
constitute those crimes;
(d) a summary of the evidence and any other information which
establish reasonable grounds to believe that the person
committed those crimes; and
(e) the reason why the Prosecutor believes that the arrest of the
person is necessary.
3. The warrant of arrest shall contain—
(a) the name of the person and any other relevant identifying
information;
(b) a specific reference to the crimes within the jurisdiction of the
Court for which the person’s arrest is sought; and
(c) a concise statement of the facts which are alleged to
constitute those crimes.
4. The warrant of arrest shall remain in effect until otherwise ordered by
the Court.
5. On the basis of the warrant of arrest, the Court may request the
provisional arrest or the arrest and surrender of the person under Part 9.
6. The Prosecutor may request the Pre-Trial Chamber to amend the
warrant of arrest by modifying or adding to the crimes specified therein. The
Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are
reasonable grounds to believe that the person committed the modified or
additional crimes.
7. As an alternative to seeking a warrant of arrrest, the Prosecutor may
submit an application requesting that the Pre-Trial Chamber issue a summons
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for the person to appear. If the Pre-Trial Chamber is satisfied that there are
reasonable grounds to believe that the person committed the crime alleged and
that a summons is sufficient to ensure the person’s appearance, it shall issue
the summons, with or without conditions restricting liberty (other than
detention) if provided for by national law, for the person to appear. The
summons shall contain—
(a) the name of the person and any other relevant identifying
information;
(b) the specified date on which the person is to appear;
(c) a specific reference to the crimes within the jurisdiction of the
Court which the person is alleged to have committed; and
(d) a concise statement of the facts which are alleged to
constitute the crime.
The summons shall be served on the person.
ARTICLE 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional arrest or for
arrest and surrender shall immediately take steps to arrest the person in question
in accordance with its laws and the provisions of Part 9.
2. A person arrested shall be brought promptly before the competent
judicial authority in the custodial State which shall determine, in accordance
with the law of that State, that—
(a) the warrant applies to that person;
(b) the person has been arrested in accordance with the proper
process; and
(c) the person’s rights have been respected.
3. The person arrested shall have the right to apply to the competent
authority in the custodial State for interim release pending surrender.
4. In reaching a decision on any such application, the competent
authority in the custodial State shall consider whether, given the gravity of
the alleged crimes, there are urgent and exceptional circumstances to justify
interim release and whether necessary safeguards exist to ensure that the
custodial State can fulfil its duty to surrender the person to the Court. It
shall not be open to the competent authority of the custodial State to
consider whether the warrant of arrest was properly issued in accordance with
article 58, paragraph 1(a) and (b).
5. The Pre-Trial Chamber shall be notified of any request for interim
release and shall make recommendations to the competent authority in the
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custodial State. The competent authority in the custodial State shall give full
consideration to such recommendations, including any recommendations on
measures to prevent the escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber may
request periodic reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the person
shall be delivered to the Court as soon as possible.
ARTICLE 60
Initial proceedings before the Court
1. Upon the surrender of the person to the Court, or the person’s
appearance before the Court voluntarily or pursuant to a summons, the Pre-
Trial Chamber shall satisfy itself that the person has been informed of the
crimes which he or she is alleged to have committed, and of his or her rights
under this Statute, including the right to apply for interim release pending trial.
2. A person subject to a warrant of arrest may apply for interim release
pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth
in article 58, paragraph 1, are met, the person shall continue to be detained. If
it is not so satisfied, the Pre-Trial Chamber shall release the person, with or
without conditions.
3. The Pre-Trial Chamber shall periodically review its ruling on the
release or detention of the person, and may do so at any time on the request of
the Prosecutor or the person. Upon such review, it may modify its ruling as to
detention, release or conditions of release, if it is satisfied that changed
circumstances so require.
4. The Pre-Trial Chamber shall ensure that a person is not detained for
an unreasonable period prior to trial due to inexcusable delay by the
Prosecutor. If such delay occurs, the Court shall consider releasing the person,
with or without conditions.
5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to
secure the presence of a person who has been released.
ARTICLE 61
Confirmation of the charges before trial
1. Subject to the provisions of paragraph 2, within a reasonable time after
the person’s surrender or voluntary appearance before the Court, the Pre-Trial
Chamber shall hold a hearing to confirm the charges on which the Prosecutor
intends to seek trial. The hearing shall be held in the presence of the Prosecutor
and the person charged, as well as his or her counsel.
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2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its
own motion, hold a hearing in the absence of the person charged to confirm the
charges on which the Prosecutor intends to seek trial when the person has—
(a) waived his or her right to be present; or
(b) fled or cannot be found and all reasonable steps have been
taken to secure his or her appearance before the Court and to
inform the person of the charges and that a hearing to
confirm those charges will be held.
In that case, the person shall be represented by counsel where the Pre-Trial
Chamber determines that it is in the interests of justice.
3. Within a reasonable time before the hearing, the person shall—
(a) be provided with a copy of the document containing the
charges on which the Prosecutor intends to bring the person
to trial; and
(b) be informed of the evidence on which the Prosecutor intends
to rely at the hearing.
The Pre-Trial Chamber may issue orders regarding the disclosure of
information for the purposes of the hearing.
4. Before the hearing, the Prosecutor may continue the investigation and
may amend or withdraw any charges. The person shall be given reasonable
notice before the hearing of any amendment to or withdrawal of charges. In
case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial
Chamber of the reasons for the withdrawal.
5. At the hearing, the Prosecutor shall support each charge with sufficient
evidence to establish substantial grounds to believe that the person committed
the crime charged. The Prosecutor may rely on documentary or summary
evidence and need not call the witnesses expected to testify at the trial.
6. At the hearing, the person may—
(a) object to the charges;
(b) challenge the evidence presented by the Prosecutor; and
(c) present evidence.
7. The Pre-Trial Chamber shall, on the basis of the hearing, determine
whether there is sufficient evidence to establish substantial grounds to believe
that the person committed each of the crimes charged. Based on its
determination, the Pre-Trial Chamber shall—
(a) confirm those charges in relation to which it has determined
that there is sufficient evidence, and commit the person to a
Trial Chamber for trial on the charges as confirmed;
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(b) decline to confirm those charges in relation to which it has
determined that there is insufficient evidence;
(c) adjourn the hearing and request the Prosecutor to consider:
(i) providing further evidence or conducting further
investigation with respect to a particular charge; or
(ii) amending a charge because the evidence submitted
appears to establish a different crime within the
jurisdiction of the Court.
8. Where the Pre-Trial Chamber declines to confirm a charge, the
Prosecutor shall not be precluded from subsequently requesting its
confirmation if the request is supported by additional evidence.
9. After the charges are confirmed and before the trial has begun, the
Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to
the accused, amend the charges. If the Prosecutor seeks to add additional charges
or to substitute more serious charges, a hearing under this article to confirm those
charges must be held. After commencement of the trial, the Prosecutor may, with
the permission of the Trial Chamber, withdraw the charges.
10. Any warrant previously issued shall cease to have effect with respect
to any charges which have not been confirmed by the Pre-Trial Chamber or
which have been withdrawn by the Prosecutor.
11. Once the charges have been confirmed in accordance with this
article, the Presidency shall constitute a Trial Chamber which, subject to
paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct
of subsequent proceedings and may exercise any function of the Pre-Trial
Chamber that is relevant and capable of application in those proceedings.
PART 6—THE TRIAL
ARTICLE 62
Place of trial
Unless otherwise decided, the place of the trial shall be the seat of the Court.
ARTICLE 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
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2. If the accused, being present before the Court, continues to disrupt
the trial, the Trial Chamber may remove the accused and shall make provision
for him or her to observe the trial and instruct counsel from outside the
courtroom, through the use of communications technology, if required. Such
measures shall be taken only in exceptional circumstances after other
reasonable alternatives have proved inadequate, and only for such duration as
is strictly required.
ARTICLE 64
Functions and powers of the Trial Chamber
1. The functions and powers of the Trial Chamber set out in this article
shall be exercised in accordance with this Statute and the Rules of Procedure
and Evidence.
2. The Trial Chamber shall ensure that a trial is fair and expeditious and
is conducted with full respect for the rights of the accused and due regard for
the protection of victims and witnesses.
3. Upon assignment of a case for trial in accordance with this Statute,
the Trial Chamber assigned to deal with the case shall—
(a) confer with the parties and adopt such procedures as are
necessary to facilitate the fair and expeditious conduct of the
proceedings;
(b) determine the language or languages to be used at trial; and
(c) subject to any other relevant provisions of this Statute, provide
for disclosure of documents or information not previously
disclosed, sufficiently in advance of the commencement of the
trial to enable adequate preparation for trial.
4. The Trial Chamber may, if necessary for its effective and fair
functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary,
to another available Judge of the Pre-Trial Division.
5. Upon notice to the parties, the Trial Chamber may, as appropriate,
direct that there be joinder or severance in respect of charges against more than
one accused.
6. In performing its functions prior to trial or during the course of a trial,
the Trial Chamber may, as necessary—
(a) exercise any functions of the Pre-Trial Chamber referred to
in article 61, paragraph 11;
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(b) require the attendance and testimony of witnesses and
production of documents and other evidence by obtaining, if
necessary, the assistance of States as provided in this Statute;
(c) provide for the protection of confidential information;
(d) order the production of evidence in addition to that already
collected prior to the trial or presented during the trial by
the parties;
(e) provide for the protection of the accused, witnesses and
victims; and
(f) rule on any other relevant matters.
7. The trial shall be held in public. The Trial Chamber may, however,
determine that special circumstances require that certain proceedings be in
closed session for the purposes set forth in article 68, or to protect confidential
or sensitive information to be given in evidence.
8. (a) At the commencement of the trial, the Trial Chamber shall have
read to the accused the charges previously confirmed by the Pre-Trial
Chamber. The Trial Chamber shall satisfy itself that the accused understands
the nature of the charges. It shall afford him or her the opportunity to make an
admission of guilt in accordance with article 65 or to plead not guilty.
(b) At the trial, the presiding Judge may give directions for the
conduct of proceedings, including to ensure that they are conducted in a fair
and impartial manner. Subject to any directions of the presiding Judge, the
parties may submit evidence in with the provisions of this Statute.
9. The Trial Chamber shall have, inter alia, the power on application of
a party or on its own motion to:
(a) rule on the admissibility or relevance of evidence; and
(b) take all necessary steps to maintain order in the course of a
hearing.
10. The Trial Chamber shall ensure that a complete record of the trial,
which accurately reflects the proceedings, is made and that it is maintained
and preserved by the Registrar.
ARTICLE 65
Proceedings on an admission of guilt
1. Where the accused makes an admission of guilt pursuant to article 64,
paragraph 8(a), the Trial Chamber shall determine whether—
(a) the accused understands the nature and consequences of the
admission of guilt;
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(b) the admission is voluntarily made by the accused after
sufficient consultation with defence counsel; and
(c) the admission of guilt is supported by the facts of the case
that are contained in—
(i) the charges brought by the Prosecutor and admitted by
the accused;
(ii) any materials presented by the Prosecutor which
supplement the charges and which the accused
accepts; and
(iii) any other evidence, such as the testimony of
witnesses, presented by the Prosecutor or the accused.
2. Where the Trial Chamber is satisfied that the matters referred to in
paragraph 1 are established, it shall consider the admission of guilt, together
with any additional evidence presented, as establishing all the essential facts
that are required to prove the crime to which the admission of guilt relates, and
may convict the accused of that crime.
3. Where the Trial Chamber is not satisfied that the matters referred to
in paragraph 1 are established, it shall consider the admission of guilt as not
having been made, in which case it shall order that the trial be continued under
the ordinary trial procedures provided by this Statute and may remit the case
to another Trial Chamber.
4. Where the Trial Chamber is of the opinion that a more complete
presentation of the facts of the case is required in the interests of justice, in
particular the interests of the victims, the Trial Chamber may—
(a) request the Prosecutor to present additional evidence,
including the testimony of witnesses; or
(b) order that the trial be continued under the ordinary trial
procedures provided by this Statute, in which case it shall
consider the admission of guilt as not having been made and
may remit the case to another Trial Chamber.
5. Any discussions between the Prosecutor and the defence regarding
modification of the charges, the admission of guilt or the penalty to be
imposed shall not be binding on the Court.
ARTICLE 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the
Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the
guilt of the accused beyond reasonable doubt.
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ARTICLE 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a
public hearing, having regard to the provisions of this Statute, to a fair hearing
conducted impartially, and to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail of the nature, cause
and content of the charge, in a language which the accused
fully understands and speaks;
(b) to have adequate time and facilities for the preparation of the
defence and to communicate freely with counsel of the
accused’s choosing in confidence;
(c) to be tried without undue delay;
(d) subject to article 63, paragraph 2, to be present at the trial, to
conduct the defence in person or through legal assistance of
the accused’s choosing, to be informed, if the accused does
not have legal assistance, of this right and to have legal
assistance assigned by the Court in any case where the
interests of justice so require, and without payment if the
accused lacks sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him or
her and to obtain the attendance and examination of
witnesses on his or her behalf under the same conditions as
witnesses against him or her. The accused shall also be
entitled to raise defences and to present other evidence
admissible under this Statute;
(f) to have, free of any cost, the assistance of a competent
interpreter and such translations as are necessary to meet the
requirements of fairness, if any of the proceedings of or
documents presented to the Court are not in a language
which the accused fully understands and speaks;
(g) not to be compelled to testify or to confess guilt and to
remain silent, without such silence being a consideration in
the determination of guilt or innocence;
(h) to make an unsworn oral or written statement in his or her
defence; and
(i) not to have imposed on him or her any reversal of the burden
of proof or any onus of rebuttal.
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2. In addition to any other disclosure provided for in this Statute, the
Prosecutor shall, as soon as practicable, disclose to the defence evidence in the
Prosecutor’s possession or control which he or she believes shows or tends to
show the innocence of the accused, or to mitigate the guilt of the accused, or
which may affect the credibility of prosecution evidence. In case of doubt as
to the application of this paragraph, the Court shall decide.
ARTICLE 68
Protection of the victims and witnesses and their participation in
the proceedings
1. The Court shall take appropriate measures to protect the safety,
physical and psychological well-being, dignity and privacy of victims and
witnesses. In so doing, the Court shall have regard to all relevant factors,
including age, gender as defined in article 7, paragraph 3, and health, and the
nature of the crime, in particular, but not limited to, where the crime involves
sexual or gender violence or violence against children. The Prosecutor shall
take such measures particularly during the investigation and prosecution of
such crimes. These measures shall not be prejudicial to or inconsistent with the
rights of the accused and a fair and impartial trial.
2. As an exception to the principle of public hearings provided for in
article 67, the Chambers of the Court may, to protect victims and witnesses or
an accused, conduct any part of the proceedings in camera or allow the
presentation of evidence by electronic or other special means. In particular, such
measures shall be implemented in the case of a victim of sexual violence or a
child who is a victim or a witness, unless otherwise ordered by the Court, having
regard to all the circumstances, particularly the views of the victim or witness.
3. Where the personal interests of the victims are affected, the Court
shall permit their views and concerns to be presented and considered at stages
of the proceedings determined to be appropriate by the Court and in a manner
which is not prejudicial to or inconsistent with the rights of the accused and a
fair and impartial trial. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.
4. The Victims and Witnesses Unit may advise the Prosecutor and the
Court on appropriate protective measures, security arrangements, counselling
and assistance as referred to in article 43, paragraph 6.
5. Where the disclosure of evidence or information pursuant to this
Statute may lead to the grave endangerment of the security of a witness or his
or her family, the Prosecutor may, for the purposes of any proceedings
conducted prior to the commencement of the trial, withhold such evidence or
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information and instead submit a summary thereof. Such measures shall be
exercised in a manner which is not prejudicial to or inconsistent with the rights
of the accused and a fair and impartial trial.
6. A State may make an application for necessary measures to be taken
in respect of the protection of its servants or agents and the protection of
confidential or sensitive information.
ARTICLE 69
Evidence
1. Before testifying, each witness shall, in accordance with the Rules of
Procedure and Evidence, give an undertaking as to the truthfulness of the
evidence to be given by that witness.
2. The testimony of a witness at trial shall be given in person, except to
the extent provided by the measures set forth in article 68 or in the Rules of
Procedure and Evidence. The Court may also permit the giving of viva voce
(oral) or recorded testimony of a witness by means of video or audio
technology, as well as the introduction of documents or written transcripts,
subject to this Statute and in accordance with the Rules of Procedure
and Evidence. These measures shall not be prejudicial to or inconsistent with
the rights of the accused.
3. The parties may submit evidence relevant to the case, in accordance
with article 64. The Court shall have the authority to request the submission of
all evidence that it considers necessary for the determination of the truth.
4. The Court may rule on the relevance or admissibility of any evidence,
taking into account, inter alia, the probative value of the evidence and any
prejudice that such evidence may cause to a fair trial or to a fair evaluation of the
testimony of a witness, in accordance with the Rules of Procedure and Evidence.
5. The Court shall respect and observe privileges on confidentiality as
provided for in the Rules of Procedure and Evidence.
6. The Court shall not require proof of facts of common knowledge but
may take judicial notice of them.
7. Evidence obtained by means of a violation of this Statute or
internationally recognized human rights shall not be admissible if—
(a) the violation casts substantial doubt on the reliability of the
evidence; or
(b) the admission of the evidence would be antithetical to and
would seriously damage the integrity of the proceedings.
8. When deciding on the relevance or admissibility of evidence
collected by a State, the Court shall not rule on the application of the State’s
national law.
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ARTICLE 70
Offences against the administration of justice
1. The Court shall have jurisdiction over the following offences against
its administration of justice when committed intentionally:
(a) giving false testimony when under an obligation pursuant to
article 69, paragraph 1, to tell the truth;
(b) presenting evidence that the party knows is false or forged;
(c) corruptly influencing a witness, obstructing or interfering
with the attendance or testimony of a witness, retaliating
against a witness for giving testimony or destroying,
tampering with or interfering with the collection of evidence;
(d) impeding, intimidating or corruptly influencing an official of
the Court for the purpose of forcing or persuading the official
not to perform, or to perform improperly, his or her duties;
(e) retaliating against an official of the Court on account of
duties performed by that or another official;
(f) soliciting or accepting a bribe as an official of the Court in
connection with his or her official duties.
2. The principles and procedures governing the Court’s exercise of
jurisdiction over offences under this article shall be those provided for in the
Rules of Procedure and Evidence. The conditions for providing international
cooperation to the Court with respect to its proceedings under this article shall
be governed by the domestic laws of the requested State.
3. In the event of conviction, the Court may impose a term of
imprisonment not exceeding five years, or a fine in accordance with the Rules
of Procedure and Evidence, or both.
4. (a) Each State Party shall extend its criminal laws penalizing
offences against the integrity of its own investigative or judicial process to
offences against the administration of justice referred to in this article,
committed on its territory, or by one of its nationals.
(b) Upon request by the Court, whenever it deems it proper, the
State Party shall submit the case to its competent authorities for the purpose of
prosecution. Those authorities shall treat such cases with diligence and devote
sufficient resources to enable them to be conducted effectively.
ARTICLE 71
Sanctions for misconduct before the Court
1. The Court may sanction persons present before it who commit
misconduct, including disruption of its proceedings or deliberate refusal to
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comply with its directions, by administrative measures other than imprisonment,
such as temporary or permanent removal from the courtroom, a fine or other
similar measures provided for in the Rules of Procedure and Evidence.
2. The procedures governing the imposition of the measures set forth in
paragraph 1 shall be those provided for in the Rules of Procedure and Evidence.
ARTICLE 72
Protection of national security information
1. This article applies in any case where the disclosure of the
information or documents of a State would, in the opinion of that State,
prejudice its national security interests. Such cases include those falling within
the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64,
paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87,
paragraph 6 and article 93, as well as cases arising at any other stage of the
proceedings where such disclosure may be at issue.
2. This article shall also apply when a person who has been requested to
give information or evidence has refused to do so or has referred the matter to
the State on the ground that disclosure would prejudice the national security
interests of a State and the State concerned confirms that it is of the opinion
that disclosure would prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements of
confidentiality applicable under article 54, paragraph 3(e) and (f), or the
application of article 73.
4. If a State learns that information or documents of the State are being,
or are likely to be, disclosed at any stage of the proceedings, and it is of the
opinion that disclosure would prejudice its national security interests, that
State shall have the right to intervene in order to obtain resolution of the issue
in accordance with this article.
5. If, in the opinion of a State, disclosure of information would prejudice
its national security interests, all reasonable steps will be taken by the State,
acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber
or Trial Chamber, as the case may be, to seek to resolve the matter by
cooperative means. Such steps may include—
(a) modification or clarification of the request;
(b) a determination by the Court regarding the relevance of the
information or evidence sought, or a determination as to
whether the evidence, though relevant, could be or has been
obtained from a source other than the requested State;
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(c) obtaining the information or evidence from a different source
or in a different form; or
(d) agreement on conditions under which the assistance could be
provided including, among other things, providing summaries
or redactions, limitations on disclosure, use of in camera or ex
parte proceedings, or other protective measures permissible
under the Statute and the Rules of Procedure and Evidence.
6. Once all reasonable steps have been taken to resolve the matter
through cooperative means, and if the State considers that there are no means
or conditions under which the information or documents could be provided or
disclosed without prejudice to its national security interests, it shall so notify
the Prosecutor or the Court of the specific reasons for its decision, unless a
specific description of the reasons would itself necessarily result in such
prejudice to the State’s national security interests.
7. Thereafter, if the Court determines that the evidence is relevant and
necessary for the establishment of the guilt or innocence of the accused, the
Court may undertake the following actions:
(a) where disclosure of the information or document is sought
pursuant to a request for cooperation under Part 9 or the
circumstances described in paragraph 2, and the State has
invoked the ground for refusal referred to in article 93,
paragraph 4—
(i) the Court may, before making any conclusion referred
to in subparagraph 7(a)(ii), request further
consultations for the purpose of considering the
State’s representations, which may include, as
appropriate, hearings in camera and ex parte;
(ii) if the Court concludes that, by invoking the ground for
refusal under article 93, paragraph 4, in the
circumstances of the case, the requested State is not
acting in accordance with its obligations under this
Statute, the Court may refer the matter in accordance
with article 87, paragraph 7, specifying the reasons for
its conclusion; and
(iii) the Court may make such inference in the trial of the
accused as to the existence or non-existence of a fact,
as may be appropriate in the circumstances; or
(b) in all other circumstances—
(i) order disclosure; or
(ii) to the extent it does not order disclosure, make such
inference in the trial of the accused as to the existence
or non-existence of a fact, as may be appropriate in
the circumstances.
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ARTICLE 73
Third-party information or documents
If a State Party is requested by the Court to provide a document or information
in its custody, possession or control, which was disclosed to it in confidence by a
State, intergovernmental organization or international organization, it shall seek
the consent of the originator to disclose that document or information. If the
originator is a State Party, it shall either consent to disclosure of the information or
document or undertake to resolve the issue of disclosure with the Court, subject to
the provisions of article 72. If the originator is not a State Party and refuses to
consent to disclosure, the requested State shall inform the Court that it is unable to
provide the document or information because of a pre-existing obligation of
confidentiality to the originator.
ARTICLE 74
Requirements for the decision
1. All the Judges of the Trial Chamber shall be present at each stage of
the trial and throughout their deliberations. The Presidency may, on a case-by-
case basis, designate, as available, one or more alternate Judges to be present
at each stage of the trial and to replace a member of the Trial Chamber if that
member is unable to continue attending.
2. The Trial Chamber’s decision shall be based on its evaluation of the
evidence and the entire proceedings. The decision shall not exceed the facts
and circumstances described in the charges and any amendments to the
charges. The Court may base its decision only on evidence submitted and
discussed before it at the trial.
3. The Judges shall attempt to achieve unanimity in their decision,
failing which the decision shall be taken by a majority of the Judges.
4. The deliberations of the Trial Chamber shall remain secret.
5. The decision shall be in writing and shall contain a full and reasoned
statement of the Trial Chamber’s findings on the evidence and conclusions.
The Trial Chamber shall issue one decision. When there is no unanimity, the
Trial Chamber’s decision shall contain the views of the majority and the
minority. The decision or a summary thereof shall be delivered in open Court.
ARTICLE 75
Reparations to victims
1. The Court shall establish principles relating to reparations to, or in
respect of, victims, including restitution, compensation and rehabilitation. On
this basis, in its decision the Court may, either upon request or on its own
motion in exceptional circumstances, determine the scope and extent of any
damage, loss and injury to, or in respect of, victims and will state the
principles on which it is acting.
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2. The Court may make an order directly against a convicted person
specifying appropriate reparations to, or in respect of, victims, including
restitution, compensation and rehabilitation.
Where appropriate, the Court may order that the award for reparations be
made through the Trust Fund provided for in article 79.
3. Before making an order under this article, the Court may invite and
shall take account of representations from or on behalf of the convicted
person, victims, other interested persons or interested States.
4. In exercising its power under this article, the Court may, after a
person is convicted of a crime within the jurisdiction of the Court, determine
whether, in order to give effect to an order which it may make under this
article, it is necessary to seek measures under article 93, paragraph 1.
5. A State Party shall give effect to a decision under this article as if the
provisions of article 109 were applicable to this article.
6. Nothing in this article shall be interpreted as prejudicing the rights of
victims under national or international law.
ARTICLE 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall consider the
appropriate sentence to be imposed and shall take into account the evidence
presented and submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial,
the Trial Chamber may on its own motion and shall, at the request of the
Prosecutor or the accused, hold a further hearing to hear any additional
evidence or submissions relevant to the sentence, in accordance with the Rules
of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall
be heard during the further hearing referred to in paragraph 2 and, if necessary,
during any additional hearing.
4. The sentence shall be pronounced in public and, wherever possible,
in the presence of the accused.
PART 7—PENALTIES
ARTICLE 77
Applicable penalties
1. Subject to article 110, the Court may impose one of the following
penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) imprisonment for a specified number of years, which may
not exceed a maximum of 30 years; or
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(b) a term of life imprisonment when justified by the extreme
gravity of the crime and the individual circumstances of the
convicted person.
2. In addition to imprisonment, the Court may order—
(a) a fine under the criteria provided for in the Rules of
Procedure and Evidence;
(b) a forfeiture of proceeds, property and assets derived directly
or indirectly from that crime, without prejudice to the rights
of bona fide third parties.
ARTICLE 78
Determination of the sentence
1. In determining the sentence, the Court shall, in accordance with the
Rules of Procedure and Evidence, take into account such factors as the gravity
of the crime and the individual circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct the
time, if any, previously spent in detention in accordance with an order of the
Court. The Court may deduct any time otherwise spent in detention in
connection with conduct underlying the crime.
3. When a person has been convicted of more than one crime, the Court
shall pronounce a sentence for each crime and a joint sentence specifying the
total period of imprisonment. This period shall be no less than the highest
individual sentence pronounced and shall not exceed 30 years imprisonment or
a sentence of life imprisonment in conformity with article 77, paragraph 1(b).
ARTICLE 79
Trust Fund
1. A Trust Fund shall be established by decision of the Assembly of
States Parties for the benefit of victims of crimes within the jurisdiction of the
Court, and of the families of such victims.
2. The Court may order money and other property collected through
fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.
3. The Trust Fund shall be managed according to criteria to be
determined by the Assembly of States Parties.
ARTICLE 80
Non-prejudice to national application of penalties and national laws
Nothing in this Part affects the application by States of penalties prescribed
by their national law, nor the law of States which do not provide for penalties
prescribed in this Part.
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PART 8—APPEAL AND REVISION
ARTICLE 81
Appeal against decision of acquittal or conviction or against sentence
1. A decision under article 74 may be appealed in accordance with the
Rules of Procedure and Evidence as follows:
(a) the Prosecutor may make an appeal on any of the following
grounds:
(i) procedural error,
(ii) error of fact, or
(iii) error of law;
(b) the convicted person, or the Prosecutor on that person’s
behalf, may make an appeal on any of the following grounds:
(i) procedural error,
(ii) error of fact,
(iii) error of law, or
(iv) any other ground that affects the fairness or reliability
of the proceedings or decision.
2. (a) A sentence may be appealed, in accordance with the Rules of
Procedure and Evidence, by the Prosecutor or the convicted person on the
ground of disproportion between the crime and the sentence.
(b) If on an appeal against sentence the Court considers that there
are grounds on which the conviction might be set aside, wholly or in part, it
may invite the Prosecutor and the convicted person to submit grounds under
article 81, paragraph 1(a) or (b), and may render a decision on conviction in
accordance with article 83.
(c) The same procedure applies when the Court, on an appeal
against conviction only, considers that there are grounds to reduce the sentence
under paragraph 2(a).
3. (a) Unless the Trial Chamber orders otherwise, a convicted person
shall remain in custody pending an appeal.
(b) When a convicted person’s time in custody exceeds the
sentence of imprisonment imposed, that person shall be released, except that
if the Prosecutor is also appealing, the release may be subject to the conditions
under subparagraph (c) below.
(c) In case of an acquittal, the accused shall be released
immediately, subject to the following:
(i) under exceptional circumstances, and having regard,
inter alia, to the concrete risk of flight, the seriousness
of the offence charged and the probability of success
on appeal, the Trial Chamber, at the request of the
Prosecutor, may maintain the detention of the person
pending appeal;
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(ii) a decision by the Trial Chamber under subparagraph
(c)(i) may be appealed in accordance with the Rules of
Procedure and Evidence.
4. Subject to the provisions of paragraph 3(a) and (b), execution of the
decision or sentence shall be suspended during the period allowed for appeal
and for the duration of the appeal proceedings.
ARTICLE 82
Appeal against other decisions
1. Either party may appeal any of the following decisions in accordance
with the Rules of Procedure and Evidence:
(a) a decision with respect to jurisdiction or admissibility;
(b) a decision granting or denying release of the person being
investigated or prosecuted;
(c) a decision of the Pre-Trial Chamber to act on its own
initiative under article 56, paragraph 3;
(d) a decision that involves an issue that would significantly
affect the fair and expeditious conduct of the proceedings or
the outcome of the trial, and for which, in the opinion of the
Pre-Trial or Trial Chamber, an immediate resolution by the
Appeals Chamber may materially advance the proceedings.
2. A decision of the Pre-Trial Chamber under article 57, paragraph 3(d),
may be appealed against by the State concerned or by the Prosecutor, with the
leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis.
3. An appeal shall not of itself have suspensive effect unless the Appeals
Chamber so orders, upon request, in accordance with the Rules of Procedure
and Evidence.
4. A legal representative of the victims, the convicted person or a bona
fide owner of property adversely affected by an order under article 75 may
appeal against the order for reparations, as provided in the Rules of Procedure
and Evidence.
ARTICLE 83
Proceedings on appeal
1. For the purposes of proceedings under article 81 and this article, the
Appeals Chamber shall have all the powers of the Trial Chamber.
2. If the Appeals Chamber finds that the proceedings appealed from
were unfair in a way that affected the reliability of the decision or sentence, or
that the decision or sentence appealed from was materially affected by error of
fact or law or procedural error, it may—
(a) reverse or amend the decision or sentence; or
(b) order a new trial before a different Trial Chamber.
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For these purposes, the Appeals Chamber may remand a factual issue to the
original Trial Chamber for it to determine the issue and to report back
accordingly, or may itself call evidence to determine the issue. When the
decision or sentence has been appealed only by the person convicted, or the
Prosecutor on that person’s behalf, it cannot be amended to his or her detriment.
3. If in an appeal against sentence the Appeals Chamber finds that the
sentence is disproportionate to the crime, it may vary the sentence in
accordance with Part 7.
4. The judgement of the Appeals Chamber shall be taken by a majority
of the Judges and shall be delivered in open Court. The judgement shall state
the reasons on which it is based. When there is no unanimity, the judgement
of the Appeals Chamber shall contain the views of the majority and the
minority, but a Judge may deliver a separate or dissenting opinion on a
question of law.
5. The Appeals Chamber may deliver its judgement in the absence of
the person acquitted or convicted.
ARTICLE 84
Revision of conviction or sentence
1. The convicted person or, after death, spouses, children, parents or one
person alive at the time of the accused’s death who has been given express
written instructions from the accused to bring such a claim, or the Prosecutor
on the person’s behalf, may apply to the Appeals Chamber to revise the final
judgement of conviction or sentence on the grounds that—
(a) new evidence has been discovered that:
(i) was not available at the time of trial, and such
unavailability was not wholly or partially attributable
to the party making application; and
(ii) is sufficiently important that had it been proved at trial
it would have been likely to have resulted in a
different verdict;
(b) it has been newly discovered that decisive evidence, taken
into account at trial and upon which the conviction depends,
was false, forged or falsified;
(c) one or more of the Judges who participated in conviction or
confirmation of the charges has committed, in that case, an
act of serious misconduct or serious breach of duty of
sufficient gravity to justify the removal of that Judge or those
Judges from office under article 46.
2. The Appeals Chamber shall reject the application if it considers it to
be unfounded. If it determines that the application is meritorious, it may, as
appropriate—
(a) reconvene the original Trial Chamber;
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(b) constitute a new Trial Chamber; or
(c) retain jurisdiction over the matter,
with a view to, after hearing the parties in the manner set forth in the Rules of
Procedure and Evidence, arriving at a determination on whether the judgement
should be revised.
ARTICLE 85
Compensation to an arrested or convicted person
1. Anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation.
2. When a person has by a final decision been convicted of a criminal
offence, and when subsequently his or her conviction has been reversed on the
ground that a new or newly discovered fact shows conclusively that there has
been a miscarriage of justice, the person who has suffered punishment as a
result of such conviction shall be compensated according to law, unless it is
proved that the non-disclosure of the unknown fact in time is wholly or partly
attributable to him or her.
3. In exceptional circumstances, where the Court finds conclusive facts
showing that there has been a grave and manifest miscarriage of justice, it may
in its discretion award compensation, according to the criteria provided in the
Rules of Procedure and Evidence, to a person who has been released from
detention following a final decision of acquittal or a termination of the
proceedings for that reason.
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.
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(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.
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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.
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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
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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;
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(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.
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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.
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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.
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(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.
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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;
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(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.
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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;
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(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 10—ENFORCEMENT
ARTICLE 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State
designated by the Court from a list of States which have indicated to the Court
their willingness to accept sentenced persons.
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(b) At the time of declaring its willingness to accept sentenced
persons, a State may attach conditions to its acceptance as agreed by the Court
and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform
the Court whether it accepts the Court’s designation.
2. (a) The State of enforcement shall notify the Court of any
circumstances, including the exercise of any conditions agreed under
paragraph 1, which could materially affect the terms or extent of the
imprisonment. The Court shall be given at least 45 days’ notice of any such
known or foreseeable circumstances. During this period, the State of
enforcement shall take no action that might prejudice its obligations under
article 110.
(b) Where the Court cannot agree to the circumstances referred to
in subparagraph (a), it shall notify the State of enforcement and proceed in
accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1,
the Court shall take into account the following:
(a) the principle that States Parties should share the
responsibility for enforcing sentences of imprisonment, in
accordance with principles of equitable distribution, as
provided in the Rules of Procedure and Evidence;
(b) the application of widely accepted international treaty
standards governing the treatment of prisoners;
(c) the views of the sentenced person;
(d) the nationality of the sentenced person;
(e) such other factors regarding the circumstances of the crime or the
person sentenced, or the effective enforcement of the sentence, as
may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of
imprisonment shall be served in a prison facility made available by the host
State, in accordance with the conditions set out in the headquarters agreement
referred to in article 3, paragraph 2. In such a case, the costs arising out of the
enforcement of a sentence of imprisonment shall be borne by the Court.
ARTICLE 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to
a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be
transferred from the State of enforcement.
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ARTICLE 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance
with article 103, paragraph 1(b), the sentence of imprisonment shall be
binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for
appeal and revision. The State of enforcement shall not impede the making of
any such application by a sentenced person.
ARTICLE 106
Supervision of enforcement of sentences and conditions of
imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to
the supervision of the Court and shall be consistent with widely accepted
international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the
State of enforcement and shall be consistent with widely accepted
international treaty standards governing treatment of prisoners; in no case
shall such conditions be more or less favourable than those available to
prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be
unimpeded and confidential.
ARTICLE 107
Transfer of the person upon completion of sentence
1. Following completion of the sentence, a person who is not a national
of the State of enforcement may, in accordance with the law of the State of
enforcement, be transferred to a State which is obliged to receive him or her,
or to another State which agrees to receive him or her, taking into account any
wishes of the person to be transferred to that State, unless the State of
enforcement authorizes the person to remain in its territory.
2. If no State bears the costs arising out of transferring the person to
another State pursuant to paragraph 1, such costs shall be borne by the Court.
3. Subject to the provisions of article 108, the State of enforcement may
also, in accordance with its national law, extradite or otherwise surrender the
person to a State which has requested the extradition or surrender of the person
for purposes of trial or enforcement of a sentence.
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ARTICLE 108
Limitation on the prosecution or punishment of other offences
1. A sentenced person in the custody of the State of enforcement shall
not be subject to prosecution or punishment or to extradition to a third State
for any conduct engaged in prior to that person’s delivery to the State of
enforcement, unless such prosecution, punishment or extradition has been
approved by the Court at the request of the State of enforcement.
2. The Court shall decide the matter after having heard the views of the
sentenced person.
3. Paragraph 1 shall cease to apply if the sentenced person remains
voluntarily for more than 30 days in the territory of the State of enforcement
after having served the full sentence imposed by the Court, or returns to the
territory of that State after having left it.
ARTICLE 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the
Court under Part 7, without prejudice to the rights of bona fide third parties,
and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it
shall take measures to recover the value of the proceeds, property or assets
ordered by the Court to be forfeited, without prejudice to the rights of bona
fide third parties.
3. Property, or the proceeds of the sale of real property or, where
appropriate, the sale of other property, which is obtained by a State Party as a result
of its enforcement of a judgement of the Court shall be transferred to the Court.
ARTICLE 110
Review by the Court concerning reduction of sentence
1. The State of enforcement shall not release the person before expiry of
the sentence pronounced by the Court.
2. The Court alone shall have the right to decide any reduction of
sentence, and shall rule on the matter after having heard the person.
3. When the person has served two thirds of the sentence, or 25 years in the
case of life imprisonment, the Court shall review the sentence to determine whether
it should be reduced. Such a review shall not be conducted before that time.
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4. In its review under paragraph 3, the Court may reduce the sentence if
it finds that one or more of the following factors are present:
(a) the early and continuing willingness of the person to
cooperate with the Court in its investigations and
prosecutions;
(b) the voluntary assistance of the person in enabling the
enforcement of the judgements and orders of the Court in
other cases, and in particular providing assistance in locating
assets subject to orders of fine, forfeiture or reparation which
may be used for the benefit of victims; or
(c) other factors establishing a clear and significant change of
circumstances sufficient to justify the reduction of sentence,
as provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review under paragraph 3 that it
is not appropriate to reduce the sentence, it shall thereafter review the question
of reduction of sentence at such intervals and applying such criteria as
provided for in the Rules of Procedure and Evidence.
ARTICLE 111
Escape
If a convicted person escapes from custody and flees the State of
enforcement, that State may, after consultation with the Court, request the
person’s surrender from the State in which the person is located pursuant to
existing bilateral or multilateral arrangements, or may request that the Court
seek the person’s surrender, in accordance with Part 9. It may direct that the
person be delivered to the State in which he or she was serving the sentence
or to another State designated by the Court.
PART 11—ASSEMBLY OF STATES PARTIES
ARTICLE 112
Assembly of States Parties
1. An Assembly of States Parties to this Statute is hereby established.
Each State Party shall have one representative in the Assembly who may be
accompanied by alternates and advisers. Other States which have signed this
Statute or the Final Act may be observers in the Assembly.
2. The Assembly shall—
(a) consider and adopt, as appropriate, recommendations of the
Preparatory Commission;
(b) provide management oversight to the Presidency, the
Prosecutor and the Registrar regarding the administration of
the Court;
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(c) consider the reports and activities of the Bureau established
under paragraph 3 and take appropriate action in regard
thereto;
(d) consider and decide the budget for the Court;
(e) decide whether to alter, in accordance with article 36, the
number of Judges;
(f) consider pursuant to article 87, paragraphs 5 and 7, any
question relating to non-cooperation;
(g) perform any other function consistent with this Statute or the
Rules of Procedure and Evidence.
3. (a) The Assembly shall have a Bureau consisting of a President, two
Vice-Presidents and 18 members elected by the Assembly for three-year terms.
(b) The Bureau shall have a representative character, taking into
account, in particular, equitable geographical distribution and the adequate
representation of the principal legal systems of the world.
(c) The Bureau shall meet as often as necessary, but at least once a
year. It shall assist the Assembly in the discharge of its responsibilities.
4. The Assembly may establish such subsidiary bodies as may be
necessary, including an independent oversight mechanism for inspection,
evaluation and investigation of the Court, in order to enhance its efficiency
and economy.
5. The President of the Court, the Prosecutor and the Registrar or their
representatives may participate, as appropriate, in meetings of the Assembly
and of the Bureau.
6. The Assembly shall meet at the seat of the Court or at the
Headquarters of the United Nations once a year and, when
circumstances so require, hold special sessions. Except as otherwise specified
in this Statute, special sessions shall be convened by the Bureau on its own
initiative or at the request of one-third of the States Parties.
7. Each State Party shall have one vote. Every effort shall be made to
reach decisions by consensus in the Assembly and in the Bureau. If consensus
cannot be reached, except as otherwise provided in the Statute:
(a) Decisions on matters of substance must be approved by a
two-thirds majority of those present and voting provided that
an absolute majority of States Parties constitutes the quorum
for voting;
(b) Decisions on matters of procedure shall be taken by a simple
majority of States Parties present and voting.
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8. A State Party which is in arrears in the payment of its financial
contributions towards the costs of the Court shall have no vote in the Assembly
and in the Bureau if the amount of its arrears equals or exceeds the amount of
the contributions due from it for the preceding two full years. The Assembly
may, nevertheless, permit such a State Party to vote in the Assembly and in the
Bureau if it is satisfied that the failure to pay is due to conditions beyond the
control of the State Party.
9. The Assembly shall adopt its own rules of procedure.
10. The official and working languages of the Assembly shall be those of
the General Assembly of the United Nations.
PART 12—FINANCING
ARTICLE 113
Financial Regulations
Except as otherwise specifically provided, all financial matters related to the
Court and the meetings of the Assembly of States Parties, including its Bureau
and subsidiary bodies, shall be governed by this Statute and the Financial
Regulations and Rules adopted by the Assembly of States Parties.
ARTICLE 114
Payment of expenses
Expenses of the Court and the Assembly of States Parties, including its
Bureau and subsidiary bodies, shall be paid from the funds of the Court.
ARTICLE 115
Funds of the Court and of the Assembly of States Parties
The expenses of the Court and the Assembly of States Parties, including its
Bureau and subsidiary bodies, as provided for in the budget decided by the
Assembly of States Parties, shall be provided by the following sources:
(a) assessed contributions made by States Parties;
(b) funds provided by the United Nations, subject to the approval
of the General Assembly, in particular in relation to the
expenses incurred due to referrals by the Security Council.
ARTICLE 116
Voluntary contributions
Without prejudice to article 115, the Court may receive and utilize, as
additional funds, voluntary contributions from Governments, international
organizations, individuals, corporations and other entities, in accordance with
relevant criteria adopted by the Assembly of States Parties.
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ARTICLE 117
Assessment of contributions
The contributions of States Parties shall be assessed in accordance with an
agreed scale of assessment, based on the scale adopted by the United Nations
for its regular budget and adjusted in accordance with the principles on which
that scale is based.
ARTICLE 118
Annual audit
The records, books and accounts of the Court, including its annual financial
statements, shall be audited annually by an independent auditor.
PART 13—FINAL CLAUSES
ARTICLE 119
Settlement of disputes
1. Any dispute concerning the judicial functions of the Court shall be
settled by the decision of the Court.
2. Any other dispute between two or more States Parties relating to the
interpretation or application of this Statute which is not settled through
negotiations within three months of their commencement shall be referred to
the Assembly of States Parties. The Assembly may itself seek to settle the
dispute or may make recommendations on further means of settlement of the
dispute, including referral to the International Court of Justice in
conformity with the Statute of that Court.
ARTICLE 120
Reservations
No reservations may be made to this Statute.
ARTICLE 121
Amendments
1. After the expiry of seven years from the entry into force of this
Statute, any State Party may propose amendments thereto. The text of any
proposed amendment shall be submitted to the Secretary-General of the
United Nations, who shall promptly circulate it to all States Parties.
2. No sooner than three months from the date of notification, the
Assembly of States Parties, at its next meeting, shall, by a majority of those
present and voting, decide whether to take up the proposal. The Assembly may
deal with the proposal directly or convene a Review Conference if the issue
involved so warrants.
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3. The adoption of an amendment at a meeting of the Assembly of
States Parties or at a Review Conference on which consensus cannot be reached
shall require a two-thirds majority of States Parties.
4. Except as provided in paragraph 5, an amendment shall enter into
force for all States Parties one year after instruments of ratification or
acceptance have been deposited with the Secretary-General of the United
Nations by seven-eighths of them.
5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter
into force for those States Parties which have accepted the amendment one year
after the deposit of their instruments of ratification or acceptance. In respect of
a State Party which has not accepted the amendment, the Court shall not
exercise its jurisdiction regarding a crime covered by the amendment when
committed by that State Party’s nationals or on its territory.
6. If an amendment has been accepted by seven-eighths of States Parties
in accordance with paragraph 4, any State Party which has not accepted the
amendment may withdraw from this Statute with immediate effect,
notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2,
by giving notice no later than one year after the entry into force of such
amendment.
7. The Secretary-General of the United Nations shall circulate to all
States Parties any amendment adopted at a meeting of the Assembly of States
Parties or at a Review Conference.
ARTICLE 122
Amendments to provisions of an institutional nature
1. Amendments to provisions of this Statute which are of an exclusively
institutional nature, namely, article 35, article 36, paragraphs 8 and 9, article
37, article 38, article 39, paragraphs 1 (first two sentences), 2 and 4, article 42,
paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49,
may be proposed at any time, notwithstanding article 121, paragraph 1, by any
State Party. The text of any proposed amendment shall be submitted to the
Secretary-General of the United Nations or such other person designated by the
Assembly of States Parties who shall promptly circulate it to all States Parties
and to others participating in the Assembly.
2. Amendments under this article on which consensus cannot be reached
shall be adopted by the Assembly of States Parties or by a Review Conference,
by a two-thirds majority of States Parties. Such amendments shall enter into
force for all States Parties six months after their adoption by the Assembly or,
as the case may be, by the Conference.
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ARTICLE 123
Review of the Statute
1. Seven years after the entry into force of this Statute the Secretary-
General of the United Nations shall convene a Review Conference to consider
any amendments to this Statute. Such review may include, but is not limited to,
the list of crimes contained in article 5. The Conference shall be open to those
participating in the Assembly of States Parties and on the same conditions.
2. At any time thereafter, at the request of a State Party and for the purposes
set out in paragraph 1, the Secretary-General of the United Nations shall, upon
approval by a majority of States Parties, convene a Review Conference.
3. The provisions of article 121, paragraphs 3 to 7, shall apply to the
adoption and entry into force of any amendment to the Statute considered at a
Review Conference.
ARTICLE 124
Transitional Provision
Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a
party to this Statute, may declare that, for a period of seven years after the entry
into force of this Statute for the State concerned, it does not accept the
jurisdiction of the Court with respect to the category of crimes referred to in
article 8 when a crime is alleged to have been committed by its nationals or
on its territory. A declaration under this article may be withdrawn at any time.
The provisions of this article shall be reviewed at the Review Conference
convened in accordance with article 123, paragraph 1.
ARTICLE 125
Signature, ratification, acceptance, approval or accession
1. This Statute shall be open for signature by all States in Rome, at the
headquarters of the Food and Agriculture Organization of the United Nations,
on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the
Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the
Statute shall remain open for signature in New York, at United Nations
Headquarters, until 31st December 2000.
2. This Statute is subject to ratification, acceptance or approval by
signatory States. Instruments of ratification, acceptance or approval shall be
deposited with the Secretary-General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments of
accession shall be deposited with the Secretary-General of the United Nations.
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ARTICLE 126
Entry into force
1. This Statute shall enter into force on the first day of the month after
the 60th day following the date of the deposit of the 60th instrument of
ratification, acceptance, approval or accession with the Secretary-General of
the United Nations.
2. For each State ratifying, accepting, approving or acceding to this
Statute after the deposit of the 60th instrument of ratification, acceptance,
approval or accession, the Statute shall enter into force on the first day of the
month after the 60th day following the deposit by such State of its instrument
of ratification, acceptance, approval or accession.
ARTICLE 127
Withdrawal
1. A State Party may, by written notification addressed to the Secretary-
General of the United Nations, withdraw from this Statute. The withdrawal
shall take effect one year after the date of receipt of the notification, unless the
notification specifies a later date.
2. A State shall not be discharged, by reason of its withdrawal, from the
obligations arising from this Statute while it was a Party to the Statute,
including any financial obligations which may have accrued. Its withdrawal
shall not affect any cooperation with the Court in connection with criminal
investigations and proceedings in relation to which the withdrawing State had
a duty to cooperate and which were commenced prior to the date on which the
withdrawal became effective, nor shall it prejudice in any way the continued
consideration of any matter which was already under consideration by the
Court prior to the date on which the withdrawal became effective.
ARTICLE 128
Authentic texts
The original of this Statute, of which the Arabic, Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations, who shall send certified copies
thereof to all States.
IN WITNESS THEREOF, the undersigned, being duly authorized thereto by
their respective Governments, have signed this Statute.
DONE at Rome, this 17th day of July 1998.
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