Section 40p. 40

PUBLIC INTERNATIONAL LAW COMPENDIUM VOLUME I

Court in respect of any act or omission that preceded the

departure of that person from the requested State.

3. Where execution of a particular measure of assistance

detailed in a request presented under paragraph 1, is

prohibited in the requested State on the basis of an

existing

fundamental

legal

principle

of

general

application, the requested State shall promptly consult

with the Court to try to resolve the matter. In the

consultations, consideration should be given to whether

the assistance can be rendered in another manner or

subject to conditions. If after consultations the matter

cannot be resolved, the Court shall modify the request as

necessary.

4. In accordance with article 72, a State Party may deny a

request for assistance, in whole or in part, only if the

request concerns the production of any documents or

disclosure

of

evidence

which

relates

to its national

security.

5.

Before

denying

a

request

for

assistance

under

paragraph

1

(l),

the

requested

State

shall

consider

whether

the

assistance

can be provided subject to

specified conditions, or whether the assistance can be

provided at a later date or in an alternative manner,

provided that if the Court or the Prosecutor accepts the

assistance

subject

to

conditions,

the

Court

or

the

Prosecutor shall abide by them.

6. If a request for assistance is denied, the requested State

Party shall promptly inform the Court or the Prosecutor of

the reasons for such denial.

7. (a) The Court may request the temporary transfer of a

person in custody for purposes of identification or for

obtaining testimony or other assistance. The person may

be transferred if the following conditions are fulfilled:

(i) The person freely gives his or her informed consent to

the transfer; and

(ii) The requested State agrees to the transfer, subject to

such conditions as that State and the Court may agree.

(b) The person being transferred shall remain in custody.

When the purposes of the transfer have been fulfilled, the

Court

shall

return the person without delay to the

requested State.

8.

(a)

The

Court

shall

ensure the confidentiality of

documents and information, except as required for the

investigation and proceedings described in the request.

(b) The requested State may, when necessary, transmit

documents

or

information

to

the

Prosecutor

on

a

confidential basis. The Prosecutor may then use them

solely for the purpose of generating new evidence.

(c) The requested State may, on its own motion or at the

request of the Prosecutor, subsequently consent to the

disclosure of such documents or information. They may

then be used as evidence pursuant to the provisions of

Parts 5 and 6 and in accordance with the Rules of

Procedure and Evidence.

9. (a) (i) In the event that a State Party receives competing

requests, other than for surrender or extradition, from the

Court

and

from

another

State

pursuant

to

an

international obligation, the State Party shall endeavour,

in consultation with the Court and the other State, to

meet

both

requests,

if

necessary

by postponing or

attaching conditions to one or the other request.

(ii) Failing that, competing requests shall be resolved in

accordance with the principles established in article 90.

(b) Where, however, the request from the Court concerns

information, property or persons which are subject to the

control of a third State or an international organization by

virtue

of

an international agreement, the requested

States shall so inform the Court and the Court shall direct

its request to the third State or international organization.

10. (a) The Court may, upon request, cooperate with and

provide

assistance

to

a

State

Party

conducting

an

investigation into or trial in respect of conduct which

constitutes a crime within the jurisdiction of the Court or

which constitutes a serious crime under the national law

of the requesting State.

(b) (i) The assistance provided under subparagraph (a)

shall include, inter alia:

a. The transmission of statements, documents or other

types

of

evidence

obtained

in

the

course

of

an

investigation or a trial conducted by the Court; and

b. The questioning of any person detained by order of the

Court;

(ii) In the case of assistance under subparagraph (b) (i) a:

a. If the documents or other types of evidence have been

obtained with the assistance of a State, such transmission

shall require the consent of that State;

b.

If

the

statements,

documents

or

other types of

evidence have been provided by a witness or expert, such

transmission shall be subject to the provisions of article

68.

(c) The Court may, under the conditions set out in this

paragraph, grant a request for assistance under this

paragraph from a State which is not a Party to this

Statute.

ARTICLE 94

Postponement of execution of a request in respect

of ongoing investigation or prosecution

1. If the immediate execution of a request would interfere

with an ongoing investigation or prosecution of a case

different from that to which the request relates, the

requested State may postpone the execution of the

request for a period of time agreed upon with the Court.

However, the postponement shall be no longer than is

necessary

to

complete

the

relevant investigation or

prosecution in the requested State. Before making a

decision

to

postpone,

the

requested

State

should

consider whether the assistance may be immediately

provided subject to certain conditions.

2.

If

a

decision

to

postpone

is

taken

pursuant

to

paragraph 1, the Prosecutor may, however, seek measures

to preserve evidence, pursuant to article 93, paragraph 1

(j).

ARTICLE 95

Postponement of execution of a request in

respect of an admissibility challenge

Where

there

is

an

admissibility

challenge

under

consideration by the Court pursuant to article 18 or 19, the

requested State may postpone the execution of a request

under this Part pending a determination by the Court,

unless

the

Court

has

specifically

ordered

that

the

Prosecutor may pursue the collection of such evidence

pursuant to article 18 or 19.

ARTICLE 96

Contents of request for other forms of

assistance under article 93

1. A request for other forms of assistance referred to in

article 93 shall be made in writing. In urgent cases, a

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