Section 38p. 38

PUBLIC INTERNATIONAL LAW COMPENDIUM VOLUME I

may be agreed upon with such an organization and

which

are

in

accordance

with

its

competence

or

mandate.

7. Where a State Party fails to comply with a request to

cooperate by the Court contrary to the provisions of this

Statute, thereby preventing the Court from exercising its

functions and powers under this Statute, the Court may

make a finding to that effect and refer the matter to the

Assembly of States Parties or, where the Security Council

referred the matter to the Court, to the Security Council.

ARTICLE 88

Availability of procedures under national law

States Parties shall ensure that there are procedures

available under their national law for all of the forms of

cooperation which are specified under this Part.

ARTICLE 89

Surrender of persons to the Court

1. The Court may transmit a request for the arrest and

surrender

of

a

person,

together

with

the

material

supporting the request outlined in article 91, to any State

on the territory of which that person may be found and

shall request the cooperation of that State in the arrest

and surrender of such a person. States Parties shall, in

accordance with the provisions of this Part and the

procedure under their national law, comply with requests

for arrest and surrender.

2. Where the person sought for surrender brings a

challenge before a national court on the basis of the

principle of ne bis in idem as provided in article 20, the

requested State shall immediately consult with the Court

to determine if there has been a relevant ruling on

admissibility. If the case is admissible, the requested State

shall proceed with the execution of the request. If an

admissibility ruling is pending, the requested State may

postpone the execution of the request for surrender of

the person until the Court makes a determination on

admissibility.

3. (a) A State Party shall authorize, in accordance with its

national

procedural

law,

transportation

through

its

territory of a person being surrendered to the Court by

another State, except where transit through that State

would impede or delay the surrender.

(b) A request by the Court for transit shall be transmitted

in accordance with article 87. The request for transit shall

contain:

(i) description of the person being transported;

(ii) A brief statement of the facts of the case and their

legal characterization; and

(iii) The warrant for arrest and surrender;

(c) A person being transported shall be detained in

custody during the period of transit;

(d)

No

authorization

is

required

if

the

person

is

transported by air and no landing is scheduled on the

territory of the transit State;

(e) If an unscheduled landing occurs on the territory of

the transit State, that State may require a request for

transit from the Court as provided for in subparagraph

(b). The transit State shall detain the person being

transported until the request for transit is received and

the

transit

is

effected,

provided

that

detention

for

purposes of this subparagraph may not be extended

beyond 96 hours from the unscheduled landing unless

the request is received within that time.

4. If the person sought is being proceeded against or is

serving a sentence in the requested State for a crime

different from that for which surrender to the Court is

sought, the requested State, after making its decision to

grant the request, shall consult with the Court.

ARTICLE 90

Competing requests

1. A State Party which receives a request from the Court

for the surrender of a person under article 89 shall, if it

also receives a request from any other State for the

extradition of the same person for the same conduct

which forms the basis of the crime for which the Court

seeks the person's surrender, notify the Court and the

requesting State of that fact.

2. Where the requesting State is a State Party, the

requested State shall give priority to the request from the

Court if:

(a) The Court has, pursuant to article 18 or 19, made a

determination that the case in respect of which surrender

is sought is admissible and that determination takes into

account the investigation or prosecution conducted by

the

requesting

State

in

respect

of

its

request

for

extradition; or

(b) The Court makes the determination described in

subparagraph

(a)

pursuant

to

the requested State's

notification under paragraph 1.

3. Where a determination under paragraph 2 (a) has not

been made, the requested State may, at its discretion,

pending the determination of the Court under paragraph

2 (b), proceed to deal with the request for extradition

from the requesting State but shall not extradite the

person until the Court has determined that the case is

inadmissible. The Court's determination shall be made on

an expedited basis.

4. If the requesting State is a State not Party to this

Statute

the

requested

State,

if

it

is

not

under

an

international obligation to extradite the person to the

requesting State, shall give priority to the request for

surrender from the Court, if the Court has determined

that the case is admissible.

5.

Where a case under paragraph 4 has not been

determined to be admissible by the Court, the requested

State may, at its discretion, proceed to deal with the

request for extradition from the requesting State.

6. In cases where paragraph 4 applies except that the

requested

State

is

under

an

existing

international

obligation to extradite the person to the requesting State

not

Party to this Statute, the requested State shall

determine whether to surrender the person to the Court

or extradite the person to the requesting State. In making

its decision, the requested State shall consider all the

relevant factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where

relevant, whether the crime was committed in its territory

and the nationality of the victims and of the person

sought; and

(c) The possibility of subsequent surrender between the

Court and the requesting State.

7. Where a State Party which receives a request from the

Court for the surrender of a person also receives a request

from any State for the extradition of the same person for

conduct other than that which constitutes the crime for

which the Court seeks the person's surrender:

(a) The requested State shall, if it is not under an existing

international obligation to extradite the person to the

requesting State, give priority to the request from the

Court;

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