[353] 1. Upon and subsequent to the establishment of the Court, the Registrar shall obtain from the Secretary-General of the United Nations any communication made by States pursuant to article 87, paragraphs 1 (a) and 2.

2. The Registrar shall transmit the requests for cooperation made by the Chambers and shall receive the responses, information and documents from requested States. The Office of the Prosecutor shall transmit the requests for cooperation made by the Prosecutor and shall receive the responses, information and documents from requested States.[300]

3. The Registrar shall be the recipient of any communication from States concerning subsequent changes in the designation of the national channels charged with receiving requests for cooperation, as well as of any change in the language in which requests for cooperation should be made, and shall, upon request, make such information available to States Parties as may be appropriate.

4. The provisions of sub-rule 2 are applicable mutatis mutandis where the Court requests information, documents or other forms of cooperation and assistance from an intergovernmental organization.

5. The Registrar shall transmit any communications referred to in sub-rules 1 and 3 and rule 177, sub-rule 2, as appropriate, to the Presidency or the Office of the Prosecutor, or both.
Rule 176 identifies the organs responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance. A question during the negotiations was whether the Court's should be channeled through the Registry only, or whether the Prosecutor should also be allowed to transmit and receive requests (Harhoff and Mochochoko, p. 640). In the end both organs are responsible to transmit and receive communicatioins pursunat to sub-rule 2.
   Sub-rule 3 provides that the Registrar shall be the recipient of any communication from States concerning subsequent changes in the designation of the national channels charged with receiving requests for cooperation, as well as of any change in the chosen language. The substance of this rule, is for an unknown reason, restated in rule 180. Sub-rule 3 includes an addition pbligation compared to rule 180, namely that the Registrar shall "make such information available to [other] States Parties as may be appropriate".
   In Kony et al.,  Decision on the Prosecutor's Application for Warrants of Arrest under Article 58, 8 July 2005, PTC II decided, inter alia, that the Warrants and the Requests, be transmitted by the Registrar to the relevant States, in accordance with the terms set out in the Requests. 

Crossreferences:
Article 87 and rule 180

Doctrine
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 603.
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 640-643.
3. Claus Kreß and Kimberly Prost, “Article 87”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2024.

Author:
Mark Klamberg

Updated: 
10 September 2017

[354] 1. Communications concerning the national authority charged with receiving requests for cooperation made upon ratification, acceptance, approval or accession shall provide all relevant information about such authorities.

2. When an intergovernmental organization is asked to assist the Court under article 87, paragraph 6, the Registrar shall, when necessary, ascertain its designated channel of communication and obtain all relevant information relating thereto.
Sub-rule 1 provides that when states becomes parties to the Court they shall inform the depositary, i.e. the UN Secretary-General, what channel they have chosen for Communication, including which national authorities they have charged with receiving requests for cooperation.
   Pursuant to sub-rule 2 the Registrar shall ascertain the proper channel of Communication when an intergovernmental organization is asked to assist.
   The procedure set out in rule 177 is not available to non-States Parties. According to Article 87(5) the  Court may such a state to provide assistance under on the basis of an ad hoc arrangement. Absent any specific rules, rule 177(2) arguable may serve as a model for the procedure to be followed (Harhoff and  Mochochoko, p. 643).

Crossreferences:
Article 87(5)

Doctrine
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 603.
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 643-644.
3. Claus Kreß and Kimberly Prost, “Article 87”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2024.

Author:
Mark Klamberg

Updated: 
10 September 2017

[355] 1. When a requested State Party has more than one official language, it may indicate upon ratification, acceptance, approval or accession that requests for cooperation and any supporting documents can be drafted in any one of its official languages.

2. When the requested State Party has not chosen a language for communication with the Court upon ratification, acceptance, accession or approval, the request for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court pursuant to article 87, paragraph 2.
Rule 178 deals with issue of language of requests for co-operation by the Court. The rule supplements article 87(2) which provides that 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.
   Sub-rule 2 concerns the situation when the requested State Party has not chosen a language for communication with the Court upon ratification, acceptance, accession or approval. If they fail to choose language, communications will be adressed to them in one of the working languages of the Court.

Doctrine
1. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 424.
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 644-646.
3. Claus Kreß and Kimberly Prost, “Article 87”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2025-2026.

Author:
Mark Klamberg

Updated: 
10 September 2017

[356] When a State not party to the Statute has agreed to provide assistance to the Court under article 87, paragraph 5, and has not made a choice of language for such requests, the requests for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court.
Rule 179 concerns requests made to non-State Parties. It applies the same approach as rule 178, namely if the state concerned has not chosen a language, communications  will be adressed to them in one of the working languages of the Court.

Doctrine
1. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 424.
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 644-646.
3. Claus Kreß and Kimberly Prost, “Article 87”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2025-2026.

Author:
Mark Klamberg

Updated: 
10 September 2017

[357] 1. Changes concerning the channel of communication or the language a State has chosen under article 87, paragraph 2, shall be communicated in writing to the Registrar at the earliest opportunity.

2. Such changes shall take effect in respect of requests for cooperation made by the Court at a time agreed between the Court and the State or, in the absence of such an agreement, 45 days after the Court has received the communication and, in all cases, without prejudice to current requests or requests in progress.
One issue during the negotiations of rule 180 was to agree upon the time as of which notification should become effective. Some delegations were in favour that notification should take effect immediately while as others suggested 40, 60 or 90 days. The compromise was to leave it to the Court and state concerned to agree upon, in absence of  such an agreement the effective date would be 45 days. As rules 176-180 is not limited to States Parties, the procedure arguably also applies, mutandis mutandis, to ad hoc agreements with non-States Parties and international organizations (Harhoff and Mochochoko, p. 646).

Doctrine:
1. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 646-647.
2. Claus Kreß and Kimberly Prost, “Article 87”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2024.

Author:
Mark Klamberg

Updated:
10 September 2017

[358] Challenge to admissibility of a case before a national Court
General Remarks
Rule 181 RPE complements Article 89 (2) of the Rome Statute which addresses a ne bis in idem challenge by a person sought for surrender to the ICC [Cazala, 2012, Article 89, p. 1843]. A person whom is sought for surrender is entitled to bring a challenge before a national court, a process which follows national law [Harhoff/Mochochoko, 2001, p. 648; Meißner, 2003, p. 135; de Gurmendi/Friman, 2009, p. 330], notwithstanding the fact that the Court itself is the ultimate arbiter regarding the admissibility of the case [Kreß/Prost, 2016, Article 89, para. 31; Meißner, 2003, p. 135]. The national and international proceedings are linked insofar as the issues considered regularly overlap. For this reason, a close cooperation between the Court and the national authorities is necessary to guarantee that the relevant information is brought to the attention of the Court and, in particular, the Chamber dealing with the case [Meißner, 2003, p. 136]. The consultation process is also meant to inform the State. Article 89 (2) stipulates that the State shall immediately consult with the Court in order to determine the existence of an admissibility ruling by the Court. The consultation permits that the national court takes into consideration any decision made by the Court [Meißner, 2003, p. 136]. The consultations are, however, rarely necessary [Schabas, 2016, Article 89, p. 1293] because any ruling on the admissibility of the case has already to be enclosed to the request by virtue of Regulation 111 of the Regulations of the Court [Kreß/Prost, 2016, Article 89, para. 31].
   While Article 89 (2) of the Statute mainly addresses the obligations of the State, Rule 181 stipulates the steps to be taken by the Court [Harhoff/Mochochoko, 2001, p. 648]. The Rule only expands slightly on Article 89 (2) for a situation of a pending ruling on the admissibility [Kreß/Prost, 2016, Article 89, para. 37].

Preparatory Works
The Rule was first introduced by France in the Working Group on the Rules of Procedure and Evidence of the Preparatory Commission on 19 November 1999 (PCNICC/1999/WGRPE(9)/DP.2, Rule 9.8) and reads as follows:

„When a situation described in article 89, paragraph 2, arises, and without prejudice to the provisions of article 19 and of rules (n) to (nn) on procedures applicable to challenges to the jurisdiction of the Court or to the admissibility of a case, the Chamber of the Court dealing with the case shall, if the admissibility ruling is still pending, take all appropriate steps to ensure that the person concerned is able to present to the Court the grounds on which he or she challenges the admissibility of the case on the basis of article 20.”

The nature and scope of the suggested Rule differed from the version that was finally agreed upon. Harhoff and Mochochocko [Harhoff/Mochochoko, 2001, p. 648] correctly point out that the French proposal would have required the Court to rely on the person sought for surrender to present the grounds on which the admissibility challenge is based. Under Rule 181 the person is allowed to bring forward the ne bis in idem challenge in national Court and places the burden of information sharing on the Chamber (Rule 181) and the State (Article 89 (2)). By replacing ‘all appropriate steps’ by ‘steps’ the Working Group also eased the burden on the Court by allowing the Chamber to directly contact the national authorities with an information request. The final version of the RPE facilitates the task of the Chamber in an even more significant way. The French proposal envisaged for the Chamber the role of a guarantor of the rights of the person sought for surrender by placing upon the Chamber the obligation to ‘ensure that the person concerned is able to present’ the grounds of the admissibility challenge instead of acting as a mere recipient of the information as envisaged in the current Rule 181. The contours of the obligation envisaged by the French proposal remain unclear and could have complicated the task of the Court. 
    In response to the French proposal the Colombian delegation (PCNICC/2000/WGRPE(9)/DP.1, Rule 9.6) criticized the ‘confusing’ text and suggested on 29 February 2000 the following wording:

„When the situation described in article 89, paragraph 2, arises, and the admissibility ruling is still pending before the Court, it shall, without prejudice to the provisions of article 19, request from the State all the relevant information about the challenge.“

The final version of Rule 181, discussed and refined in informal discussions [Harhoff/Mochochoko, 2001, p. 648] included the clarification contained in the French proposal that the Chamber is the relevant organ to request the information about the admissibility challenge and followed the Colombian suggestion that the information should be requested directly from the State.

Author:
Mayeul Hiéramente

Updated:
29 June 2017

[359] When a situation described in article 89, paragraph 2,
A situation described in Article 89 (2)
Pursuant to Article 89 (2) every person sought for surrender to the International Criminal Court has the right to invoke the ne bis in idem principle to object to such surrender. Such a challenge is to be brought to the attention of the national court despite the fact that the national court is not in a position to rule on the admissibility of the case under the Statute. Such a challenge is based on the ne bis in idem principle as defined by the national laws [Meißner, 2003, p. 135]. The standards applicable under national law can differ from those relevant to an admissibility challenge under Article 19, which refers to Article 17 and thereby Article 20 (3). The fact that the person challenged the surrender in national courts does, in itself, not impede the surrender process [Meißner, 2003, p. 137]. A postponement of the surrender only occurs if a ruling on the admissibility by the Court is pending.

Author:
Mayeul Hiéramente

Updated:
29 June 2017

[360] Without prejudice to the provisions of Article 19 and Rules 58 to 62
Rule 181 references Article 19 and Rules 58 to 62. It thereby acknowledges that a request for arrest and surrender can also lead to an admissibility challenge for reasons other than ne bis in idem (Article 20). A person subject to an arrest warrant by the Court (Article 19 (2)(a)) and a State which has jurisdiction over the case, and is willing and able to prosecute the case can challenge the admissibility of the case before the Court. Rule 181 indicates that such an application is not affected by the ne bis in idem challenge before national courts. Rules 58 to 62 contain distinct procedural provisions in this regard. Such a challenge is likely if the relationship between the Court and the requested State is antagonistic [Schabas, 2016, Article 89, p. 1294]. Due to the penitentiary conditions in some of the requested State a challenge by the person sought is rather unlikely at this early stage [see also Schabas, 2016, Article 89, p. 1294].

Author:
Mayeul Hiéramente

Updated:
30 June 2017

[361] Chamber dealing with the case
Rule 181 clarifies that the Chamber is the competent organ to ask for all relevant information about the ne bis in idem challenge. Such a ne bis in idem challenge will most likely occur in a situation where the Court is still in the investigation phase. Thus, it is the task of the Pre-Trial Chamber to obtain the relevant information. The Chamber can rely on the support of the Registrar (Rule 176 (2)). 

Author:
Mayeul Hiéramente

Updated:
30 June 2017

[362] Step to obtain from the requested State
If a ne bis in idem challenge is brought before a national court the Chamber will want to take note of all information that could be relevant for its own determination of admissibility. It might therefore request a transcript of the ne bis in idem application (including possible annexes) and, if possible, any judgments, case files and other official documents that could be relevant for a future determination by the Court.

Cross References
Article 19, Article 89 (2), Rule 58, Rule 59, Rule 60, Rule 61, Rule 62

Doctrine
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 614.
2. Julien Cazala, “Article 89”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1835-1847.
3. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 637-670.
4. Silvia Fernández de Gurmendi and Hakan Friman, “The Rules of Procedure and Evidence of the International Criminal Court”, Yearbook of International Humanitarian Law, vol. 3, 2000, pp. 289-336.
5. Claus Kreß and Kimberly Prost, “Article 89”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2046-2058.
6. Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, C.H. Beck, München, 2003.
7. William Schabas, “Article 89”, in William Schabas, The International Criminal Court. A Commentary on the Rome Statute, Second edition, Oxford University Press, Oxford, 2016, pp. 1288-1296.

Author:
Mayeul Hiéramente

Updated:
30 June 2017

[363] Request for transit under article 89, paragraph 3 (e)
General Remarks
Rule 182 complements Article 89 (3) of the Rome Statute which addresses the situation of the transfer to the Court of an arrested person through the territory of a transit State. The fact that the seat of the Court is in The Hague, Netherlands (Article 3 (1)) implies that a transit through States that were not involved in the arrest and surrender process will occur on a regular basis [Harhoff/Mochochoko, 2001, p. 649]. Sub-paragraph (e) deals with the very specific and rather rare situation of an unscheduled landing on the territory of the transit State. Due to the lack of prior agreements and consultations with the transit State, such a situation requires quick procedures to address the urgency of the situation [Harhoff/Mochochoko, 2001, p. 649].
   Rule 182 (1) specifies the transmission process and emphasizes the need for a written record. Paragraph 2 stipulates the consequences in case the Court fails to provide a transit request in the 96 hour period following the unscheduled landing. Article 89(3)(e) thereby stipulates the exemption to the general rule, laid down in Article 89 (3) (d), that air transport without scheduled landing through the territory of States Parties does not require authorization by the State [Kreß/Prost, 2016, Article 89, para. 45; Harhoff/Mochochoko, 2001, p. 649; Cazala, 2012, Article 89, p. 1844]. Rule 182 has had no known practical relevance yet.

Preparatory Works
A draft for Rule 182 has been introduced by the French delegation to the Working Group on the Rules of Procedure and Evidence. The French proposal dated 19 November 1999 (PCNICC/1999/WGRPE(9)/DP.2, Rule 9.9) was nearly identical to the text that was finally adopted and reads as follows:

“(a) In situations described in article 89, paragraph 3 (e), the Court may transmit the request for transit to the State concerned by any medium capable of delivering a written record.
(b) When the time limit provided for in article 89, paragraph 3 (e), has expired and the person concerned has been released, such a release shall be without prejudice to a subsequent arrest of the person concerned in accordance with the provisions of article 92 or article 89.”

The provision was not disputed and was adopted with minor changes [Harhoff/Mochochoko, 2001, p. 649].

Analysis
i) Sub-Rule 1

Rule 182 (1) contains procedural details for an urgent request in case of an unscheduled landing [Kreß/Prost, 2016, Article 89, para. 50].

Author:
Mayeul Hiéramente

Updated:
3 July 2017

[364] 1(a). The Court
The Rule does not specify which organ of the Court is designated to communicate with the national authorities in case of an unscheduled landing. The fact that the unscheduled landing is part of the surrender process (see Rule 184) suggests that the Registrar should handle such a request for transit in order to avoid any additional delays. The transit arrangements require technical consultations with all the States involved, especially with the requested State and should be entrusted to the Registrar [Meißner, 2003, p. 184]. Furthermore, it can be argued that the unscheduled landing is ultimately linked to a request for cooperation by the Chamber (see Rule 176 (2)).

Author:
Mayeul Hiéramente

Updated:
3 July 2017

[365] 1.(b) May transmit
The Court is entitled to transmit the request in writing if the situation so permits. The use of an alternative ‘medium capable of delivering a written record’ is optional. In light of the 96 hour deadline determined in Article 89 (3 (e) the Court will certainly opt for a secure and fast line of communication.
   Rule 182 (1) lacks clarity in another regard and once again the comparison with Article 91 (1) raises questions. Article 91 (1) suggests that in urgent cases of requests for arrest and surrender the Court can depart from the communication channels established under Article 87 (1) (a), namely the diplomatic channel or other communication channels designated by the State. In such a case the Court is tasked to subsequently confirm the request through these aforementioned channels. Rule 182 (1) lacks any explicit provision addressing this issue. Article 89 (3 (e) refers to Article 89 (3) (b) which in turn refers to Article 87. This suggests that Rule 182 (1) allows for a modification on the form of the request, but not to the transmission channels to be used. There is reason to argue that such an interpretation of Rule 182 (1) and Article 89 (3) (e) contradicts the ratio legis of the provision. First, the intended effect of Rule 182 (1) is to streamline the procedure in cases of extreme and unpredicted urgency. A restrictive approach regarding the transmission procedure would hamper an effective implementation of the request for transit. Second, Article 91 (1) provides for a balanced solution to a situation where time is of the essence. It protects the interest of the Court in a functioning cooperation regime by allowing it to directly contact the authorities ‘on the ground’ and guarantees that the diplomatic institutions guarding the sovereignty of the State are informed and included in the process before any irreversible decision on the part of the State has been made. Third, the situation addressed in Rule 182 (1) and Article 89 (3) (e) differs from other situations in that the State is already made aware of the situation due to the facts on the ground. Furthermore, it is only upon demand (‘that State may require a request’) by the State itself that a request for transit is issued by the Court [Harhoff/Mochochoko, 2001 p. 649; Cazala, 2012, p. 1844]. In such a case, the State is not deserving of any additional protection as to the transmission procedure to be followed. Given the urgency of the situation described in Article 89 (3) (e) it is, therefore, reasonable to grant the Court the right to communicate directly with the authorities concerned and refer the State to a subsequent confirmation via the designated channels.

Author:
Mayeul Hiéramente

Updated:
3 July 2017

[366] 1. (c) Medium capable of delivering a written record
Rule 182 (1) allows for a transmission of a request for transit by any medium capable of delivering a written record. The request can thereby be transmitted via email, facsimile [Osterveldt et al., 2001, p. 773] or telegram [Harhoff/Mochochocko, 2001, p. 649]. The purpose is to allow for a speedy communication [Kreß/Prost, 2016, Article 89, para. 50]. While other forms of communication such as SMS or other electronic media [Harhoff/Mochochocko, 2001, p. 649] could also be considered as capable of delivering a written record it should be noted that pursuant to Article 89 (3) (e) the State can ask for a request for transit in conformity with Article 89 (3) (b) which inter alia requires the description of the person, the facts, and the legal characterization, as well as the warrant of arrest and surrender. It is unlikely that such information could be provided by other – secure – means of communication making a communication via email, facsimile or telegram the only reasonable alternative to a written request.
   As mentioned above, Rule 182 (1) focusses on the situation of an unscheduled landing as determined by Article 89 (3) (e) of the Rome Statute and postulates a specific formal requirement for the occasion. The Rule itself does not explicitly specify whether it lessens or establishes the formal requirements. Article 89 (3) (b) establishes the required content for a request for transit but refrains from determining any formal requirements in this regard. Same holds true for Article 87, which contains general provisions regarding requests for cooperation but makes no mention of the form of the request [see also Meißner, 2003, p. 185]. Only in Article 91 (1) is it established that ‘[a] request for arrest and surrender shall be made in writing.’ It is unclear whether the Article also applies to a request for transit [Rinoldi/Parisi, 1999, p. 379]. The fact that Article 91 (1) further stipulates that ‘[i]n urgent cases, a request may be made by any medium capable of delivering a written record’, might suggest otherwise. It would not have been necessary to clarify the formal requirements in Rule 182 (1) for a situation that is per definition of a certain urgency and would thereby covered by Article 91 (1). However, the close link between surrender and transit as well as the heading of Article 89 (‘Surrender of persons to the Court’) militate in favour of a broad interpretation that includes the request for transit in the scope of application of Article 91 (1). The ratio of Article 89 (3) (b) shows that the founders of the ICC acknowledged that a request for transit had to include detailed information regarding the person to be surrendered, the acts he or she is accused, and the warrants for arrest and surrender. In such a situation, it is hard to imagine that the founders of the Rome Statute would have accepted a request that does not at least satisfy the criteria established in Rule 182 (1). The fact that the Rules explicitly stipulate a specific formal requirement in Rule 182 (1) for a defined situation of urgency and given the approach opted for in Article 91 (1) strongly suggests that a regular request for transit pursuant to Article 89 (3) (b) must be in writing. This is purported by the fact that it is hard to imagine that a request through the channels envisaged in Article 87 (1) would be accepted if it were not in writing. As a consequence, it should be clear that Rule 182 (1) lowers the formal threshold [see also Meißner, 2003, p. 184] for a request for the specific case of an unscheduled landing as envisaged in Article 89 (3) (e). The language of the request is determined in accordance with Article 87 (2) and depends on the designated channels [Meißner, 2003, p. 184].

Author:
Mayeul Hiéramente

Updated:
3 July 2017

[367] 2. When the time limit provided for in article 89, paragraph 3 (e), has expired and the person concerned has been released, such a release is without prejudice to a subsequent arrest of the person in accordance with the provisions of article 89 or article 92.
Article 89 (3) (e) specifies that the transit State may require a transit request from the Court. Failure by the Court to provide the necessary documentation can lead to the release of the person [Cazala, 2012, Article 89, p. 1844]. If the transit State does not receive the transit request in the 96 hour period following the unscheduled landing, the State is entitled to release the person from custody. Rule 182 (2) clarifies that the expiry of the deadline does not preclude a future arrest of the person on the orders of the Court. The Rule further postulates that the release is without prejudice to a subsequent ‘arrest’ in accordance with ‘Article 89 or Article 92’. The wording of Rule 182 (2) suggests that once a release in the sense of Article 89 (3)(e) occurred, a mere transit request in the sense of Article 89 (3)(b) ceases to suffice. The transit situation ends the moment the person exits through the prison door. He or she is then treated like any other person present on the territory of the State and is subject to arrest solely by virtue of a request for arrest and surrender (Article 89 (1), Article 91) or a request for provisional arrest pursuant to Article 92 [Kreß/Prost, 2016, Article 89, para. 51; Meißner, 2003, p. 188, Harhoff/Mochochoko, 2001, p. 649].

Cross References
Article 89 (1), Article 89 (3), Article 91 (1), Article 92

Doctrine
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 611.
2. Julien Cazala, “Article 89”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1835-1847.
3. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 637-670.
4. Claus Kreß and Kimberly Prost, “Article 89”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2046-2058.
5. Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, C.H. Beck, München, 2003.
6. Valerie Oosterveld, Mike Perry and John McManus, “The Cooperation of States with the International Criminal Court”, Fordham International Law Journal, Vol. 25, no. 3, 2001, pp. 767-839.
7. Dine Rinoldi and Nicoletta Parisi, “International Cooperation and Judicial Assistance between States Parties and the International Criminal Court”, in Flavia Lattanzi and William Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, vol. I, 1999, pp. 339-390.

Author:
Mayeul Hiéramente

Updated:
6 July 2017

[368] Possible temporary surrender
General Remarks
Rule 183 complements Article 89 (4) which deals with the situation that 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’ and where the State already has already taken the decision to grant the request by the Court. Article 89 (4) refers to a constellation in which neither the ne bis in idem principle (Article 20) nor the complementarity regime of Article 17 (1) (a)-(c) applies and is distinct from the situation in which the prosecution for a different crime is sought by a third State, Article 90 (7). It refers to a case where the requested State itself has an interest in prosecuting the person sought but for a different crime [Harhoff/Mochochoko, 2001, p. 650]. In such a situation the Statute envisages that the requested State cannot refuse the surrender of the person in question. The State is also not in a position to postpone the surrender by arguing the need for its own investigation or the serving of a sentence [Harhoff/Mochochoko, 2001, p. 650]. Pre-Trial Chamber I notes that Article 89 (4), being lex specialis to Article 94 (1), envisages a sequencing of the proceedings of the Court and the national authorities with priority given to the Court (Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, ICC PT. Ch. I, Decision on Libya’s Submissions Regarding the Arrest of Saif al-Islam Gaddafi, ICC-01/11-01/11-72, 7 March 2012, para. 15; see also Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Defence, Response on behalf of Abdullah al-Senussi to the Submission of the Government of Libya for Postponement of the Surrender Request for Mr. Al-Senussi, ICC-01/11-01/11-319, 24 April 2013, para. 60; Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Prosecutor, Prosecution’s Response to ‘Application on behalf of the Government of Libya relating to Abdullah al-Senussi pursuant to Article 19 of the Statue, ICC-01/11-01/11-321-Red, 2 May 2013, para. 26, footnote 41). Otherwise the national prosecution or imprisonment might lead to an indefinite postponement of the proceedings in The Hague [Harhoff/Mochochoko, 2001, p. 650].
   Nonetheless, the State has a legitimate right that its own investigation into an (alleged) criminal behaviour of the person sought not be disregarded and, in case that the person sought had already been convicted, that the punishment is meted out. The Statute itself is mute in this regard due to disagreements at the Rome Conference [Harhoff/Mochochoko, 2001, p. 650; Kreß/Prost, 2016, Article 89, para. 52]. A similar provision (draft Article 87 (8)) was not adopted [Cazala, 2012 Article 89, p. 1845]. The vacuum is now filled by Rule 183, which provides for an option for a compromise [Meißner, 2003, p. 140] and allows for a temporary surrender to the Court. Compared to other rules, Rule 183 is more substantive in nature [de Gurmendi/Friman, 2000, p. 330]. A situation of re-transfer is also addressed in Rule 185 (2).

Preparatory Works
The provision is based on a draft introduced by Germany and Canada and an informal document circulated by the German delegation [Harhoff/Mochochoko, 2001, p. 650]. The formal draft incorporates concepts of extradition regimes of the time [Harhoff/Mochochoko, 2001, p. 651] and was presented on 26 November 1999 (PCNICC/1999/WGRPE(9)/DP.4). It reads as follows:

‘Following the consultations referred to in article 89, paragraph 4, the requested State may temporarily surrender the person sought in accordance with conditions to be determined between the requested State and the Court. In such case the person shall be kept in custody during his or her presence before the Court and shall be transferred to the requested State once his or her presence before the Court is no longer required.’

The final version of Rule 183 clarifies that once the proceedings have been completed there is no ground to refuse a transfer back to the requested State.

Author:
Mayeul Hiéramente

Updated:
6 July 2017

[369] 1. Following the consultations referred to in article 89, paragraph 4
Consultations pursuant to Article 89 (4)
In order for consultations pursuant to Article 89 (4) to take place there must be a prior surrender request on the part of the Court. In a decision dated 27 April 2007, Pre-Trial Chamber I emphasized that a prerequisite of a temporary surrender under Rule 183 is the issuance of an arrest warrant against the person sought (Prosecutor v. Harun und Kushayb, PT. Ch. I, Decision on the Prosecution Application under Article 58 (7) of the Statute, ICC-02/05-01/07-1, 27 April 2007, para. 121). In the judges’ view, a summons to appear – insufficient in a situation of imprisonment of the person by national authorities on the basis of national law (Prosecutor v. Harun und Kushayb, PT. Ch. I, Decision on the Prosecution Application under Article 58 (7) of the Statute, ICC-02/05-01/07-1, 27 April 2007, para. 120) – does not suffice for the application of the consultation process envisaged in Article 89 (4) and Rule 183 [see Chaitidou/Hoven, 2016, p. 174 with further references].
   Furthermore, Article 89 (4) is clear as to the sequence to the be followed. Consultations between the national authorities and the Court are to be based on a prior decision by the national authorities to grant the surrender request by the Court. After these consultations have taken place the State can decide on the temporary surrender [Kreß/Prost, 2016, Article 89, para. 61]. While is not explicitly envisaged, such consultations might fail or be inconclusive [Rinoldi/Parisi, 1999, p. 351].

Author:
Mayeul Hiéramente

Updated:
6 July 2017

[370]  2. May Temporary surrender
At first sight, the language of Rule 183 seems somewhat confusing in that it appears to grant the requested State discretion on whether to proceed with the surrender, while Article 89 (4) clearly postulates that the request by the Court shall be granted first [see also Ambos, 2016, p. 615; Kreß/Prost, 2016, Article 89, para. 59]. The fact that the Statute grants ultimate prevalence of ICC requests [Ambos, 2016, p. 615] leaves, however, room for a discretionary decision by the requested State. Having already agreed to a surrender to the Court in principle, the national authorities have indeed two options at their disposal. They may agree to the surrender request and hand over the suspect to the Court without preconditions. Or they opt for a temporary surrender and discuss the details of such temporary surrender with the Court. The requested State is not obliged by virtue of the Statute and the Rules to insist on a temporary surrender [Kreß/Prost, 2016, Article 89, para. 61]. A sovereign State can decide on whether to postpone their own investigations and prosecutions or to end them completely by agreeing to a ‘normal’ surrender. In that sense, the discretion granted by Rule 183 is not problematic and not in conflict with the Statute, a conflict in which the Statute would take precedence [Ambos, 2016, p. 615]. The conditions for such temporary surrender are not set out by the Statute nor are they directly enshrined in Rule 183 [see Kreß/Prost, 2016, Article 89, para. 61]. They are partly established by agreement [see Cazala, 2012, Article 89, p. 1845]. The State could, in practice, also decide to delay surrender [Rinoldi/Parisi, 1999, p. 351], an outcome not envisaged by the Statute and the Rules.

Author:
Mayeul Hiéramente

Updated: 
7 July 2017

[371] 3. Shall be kept in custody
Rule 183 envisages that a temporary surrender of the person to the Court entails that the person remains in custody of the Court. The fact that the custody of the person is laid down in the second sentence of the Rule while the agreement on the conditions for a temporary surrender is mentioned in the first sentence suggests that custodial arrangements are, at least in general, not part of the conditions to be agreed upon by the Court and the national authorities. In most cases there will indeed be no need for specific arrangements regarding custody of the person. Pre-Trial Chamber I has clarified that a temporary surrender is conditioned upon the prior issuance of an arrest warrant (Prosecutor v. Harun und Kushayb, PT. Ch. I, Decision on the Prosecution Application under Article 58 (7) of the Statute, ICC-02/05-01/07-1, 27 April 2007, para. 121). Therefore, the person temporarily surrendered to the Court will be in the custody of the Court on the basis of the arrest warrant issued by the respective Pre-Trial Chamber [see also Chaitidou/Hoven, 2016, p. 183].
   Such a situation may, however, be subject to change. Article 60 (2) envisages that upon surrender to the Court, the person can apply for interim release before the competent Pre-Trial Chamber. Article 60 (3) further states that ‘[t]he 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.’ Such review has to take place every 120 days (Rule 118 (2)). Especially in Article 70 cases, where different statutory penalties apply, it is therefore not unlikely that a detention that has once been considered as necessary and proportionate is subject to a reassessment during pre-trial or trial [see Chaitidou/Hoven, 2016, p. 182 et seq.]. A reassessment of the issue of detention might also be warranted in cases where new evidence raises doubts about the guilt of the accused or the flight risk of the person concerned.
   The crux of the matter is as follows: Rule 183 does not specify the effect of a decision by the Chamber to modify the ruling of detention pursuant to Article 60 (3) on the custody of a person that has been temporarily surrendered by the requested State. Thus the Court faces a dilemma. On the one hand, the release of the person would be contrary to the legitimate interest of the requested State to prosecute or imprison the person for criminal acts punishable under the national law of the State. The State agreed on a temporary surrender and can legitimately expect that the person is made available to national authorities once the presence of the person at the Court is no longer required. On the other hand, the Court can certainly not deprive an individual of his or her liberty based solely on its acceptance of a temporary surrender by the requested State. It is not even guaranteed that the Court is in the possession or made aware of any judicial findings by national authorities (e.g. a national arrest warrant).It is not known that this situation has occurred yet. Nevertheless, it is worth considering the options the Court and the national authorities have at their disposal:
   If the proceedings have already reached a stage where the presence of the person is no longer required (see Article 63 (1), Article 67 (1)(d)), the person could be transferred back to the requested State. Same applies if the national authorities agree and guarantee that the person can travel freely to the seat of the Court in order to be present at his or her trial. This would require that the State does not insist on the detention of the person by its own judicial authorities, otherwise such an arrangement would not be manageable in practice. As a matter of law, the requested State could have opted for a ‘normal’ surrender without the caveat of a custody arrangement and is therefore in a position to waive its right to require the Court to hold the person in custody. An intricate situation arises when the State insists that the person remains in custody, but refuses or cannot guarantee participation of the person at his or her trial at the Court. This could lead to a situation where the person remains in custody of the Court on the basis of a detention decision by the national authorities. If and under which conditions such a situation is acceptable will be subject to further debate.

Author:
Mayeul Hiéramente

Updated: 
7 July 2017

[372] 4. ‘transferred back to the requested State’
The Rule envisages that the Court faces the obligation to re-transfer the person to the requested State once his presence is no longer required. The form and conditions for such a transfer are not set out in the Statute nor are they defined in Rule 183. A problem could arise from the fact that such transfer would not be in direction of the Court and would therefore not be directly covered by the cooperation regime of the Court and most importantly Article 89 (3) governing the transit though a sovereign third State. Rule 207 covers a similar situation [see de Gurmendi/Friman, 2000, p. 333] but only applies to a transit of a sentenced person to the State of enforcement. It would be reasonable to apply Rule 207 mutatis mutandis to all re-transfers on the basis of Rule 183. In all likelihood the Court will also face substantial challenges in case they decide on a transfer back to a State that imposes the death penalty (e.g. asylum requests) for the crimes in question (see e.g. Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, Gov. of Libya, Libyan Government’s consolidated reply to the responses of the Prosecution, Defence and OPCV to the Libyan Government’s Application relating to Abdullah al-Senussi, pursuant to Article 19 of the ICC Statute, ICC-01/11-01/11-403-Red2, 14 August 2013, para. 192 et seq.).

Author:
Mayeul Hiéramente

Updated:
7 July 2017

[373] 5. Presence no longer required
It is the cornerstone of the idea of a ‘temporary’ surrender that national investigations and prosecutions into a (possible) crime committed by the person are only deferred until the conflict between the interests of justice of the international community and the national justice system can be resolved. Rule 183 therefore envisages that once the presence of the person is no longer required a transfer back to the requested State can take place. The requirement for the person to be present is determined by the provisions regulating the presence of the accused during trial, namely Article 63 (1) and Article 67 (1) (d). In the Ruto and Sang case it was made clear that the presence of the accused in trial is a fundamental principle (see Prosecutor v. Sang and Ruto, App. Ch., Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber V (a) of 18 June 2013 entitled ‘Decision on Mr. Ruto’s Request for excusal from continuous presence at trial’, ICC-01/09-01/11-1066, 25 October 2013) to which only minor derogations can be tolerated (see e.g.  Rule 134 bis, ter and quarter). The obligation to be present at trial encompasses inter alia the delivery of judgment, the sentencing hearing and the sentencing [see Schabas/McDermott, 2016, Article 67, para. 28 with further references]. In light of these provisions it is to be assumed that the presence of the person is required until the judgement and, in case of a conviction, until the sentencing. Whether or not the person’s presence in reparation hearings, victim impact hearings and the appeal is required in the sense of Rule 183 is open to debate. The wording of Rule 183 further suggests that even in parts of the proceedings where a presence of the accused is not strictly required – e.g. in parts of the pre-trial proceedings [see Schabas/Caruana, 2016, Article 63, para. 34] – a re-transfer is not warranted if the presence of the person is still required at a later stage. Finally, Rule 183 clarifies that upon completion of the proceedings – including a possible appeal – the presence of the person is no longer needed.
   This leads to the question where the person, if convicted, has to serve the sentence imposed by the ICC Trial Chamber. Harhoff and Mochochoko rightfully note that an agreement for temporary surrender should encompass an obligation for the requested State to enforce any sentence imposed by the Court in direct continuation to any sentence imposed by the national justice system of the requested State [Harhoff/Mochochoko, 2001, p. 651]. Otherwise, the Court could face further and unnecessary difficulties in enforcing the sentences.
   The wording as well as the purpose of Rule 183 shows that the Court can only invoke the required presence of the person for the purpose of prosecution and trial [Harhoff/Mochochoko, 2001, p. 650]. The State may – in its original agreement or on an ad hoc basis – agree to the person testifying as a witness whilst present in The Hague. The Court cannot, however, invoke the need for a witness testimony to object to request for re-transfer.

Cross References
Article 60 (2), Article 60 (3), Article 63 (1), Article 67 (1)(d)

Doctrine
1. Kai Ambos, Treatise on International Criminal Law. Vol III: International Criminal Procedure, Oxford University Press, Oxford, 2016, pp. 614-615.
2. Julien Cazala, “Article 89”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1835-1847.
3. Eleni Chaitidou and Elisa Hoven, “The Person’s Liberty at Stake – A Tour d’Horizon on the Rights of the Arrested Person under the Rome Statute, in Mayeul Hiéramente/Patricia Schneider (eds.), The Defence in International Criminal Trials, Nomos, Baden-Baden, 2016, pp. 149-199.
4. Silvia Fernández de Gurmendi and Hakan Friman, “The Rules of Procedure and Evidence of the International Criminal Court”, Yearbook of International Humanitarian Law, vol. 3, 2000, pp. 289-336.
5. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 637-670.
6. Claus Kreß and Kimberly Prost, “Article 89”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2046-2058.
7. Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, C.H. Beck, München, 2003.
8. Dine Rinoldi and Nicoletta Parisi, “International Cooperation and Judicial Assistance between States Parties and the International Criminal Court”, in Flavia Lattanzi and William Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, vol. I, 1999, pp. 339-390.
9. William Schabas and Veronique Caruana, “Article 63”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 1563-1587.
10. William Schabas and Yvonne McDermott, “Article 67”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 1650-1680.

Author:
Mayeul Hiéramente

Updated:
7 July 2017

[374] Arrangements for surrender
General Remarks
A pre-condition for a successful and smooth cooperation regime is communication between the Court and the States tasked to arrest and surrender the person sought for prosecution by the Court. Rule 184 envisages such constant interaction between the Registrar and the States to guarantee an effective execution of surrender requests. It complements Article 59 (7) which mandates that the person is to be delivered to the Court ‘as soon as possible’. The practical arrangements of the surrender process are neither stipulated in Article 59 nor in the Articles on cooperation in Part IX of the Statute [see Harhoff/Mochochoko, 2001, p. 651; Kreß/Prost, 2016, Article 89, para. 25]. Rule 184 remains relatively imprecise [Cazala, 2012, Article 89, p. 1837].

Preparatory Works
The content of Rule 184 was not subject to much debate [Harhoff/Mochochoko, 2001, p. 651]. It is based on a proposal by Australia (PCNICC/1999/DP.1) dated 26 January 1999 which states:

In its proposal (PCNICC/1999/WGRPE(9)/DP.2, Rule 9.13) dated 19 November 1999 the French delegation accepted the Australian suggestion. The Colombian proposal (PCNICC/2000/WGRPE(9)/DP.1, Rule 9.9) dated 29 February 2000 does not differ much from the original proposal either. The same applies to the Italian proposal [see Harhoff/Mochochoko, 2001, p. 651]. Most changes made to the Australian proposal are of a linguistic nature [Harhoff/Mochochoko, 2001, p. 651]. The option to release the person after a ‘reasonable period of time’ was excluded from the scope of Rule 184. Such an option is now only included in Article 92 (3) in case of a provisional request for arrest that is not followed by a proper surrender request in accordance with Article 91.

Author:
Mayeul Hiéramente

Updated:
11 July 2017

[375] 1 (a) The requested State
Rule 184 (1) is addressed to the ‘requested State’ without further specifying which State that might be. What is clear is that the cooperation regime of the Rome Statute as well as the complementary Rules are binding on States Parties. The Court has further emphasized that the UN Security Council can use a referral as envisaged in Article 13 (b) of the Statute to impose on (all) Member States of the United Nations a duty to cooperate with the International Criminal Court. The UN Security Council, at least in theory, could even expand the cooperation regime envisaged in Part IX [Reisinger-Coracini, 2013, p. 101]. In the Libya situation, Pre-Trial Chamber I (Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, ICC PT. Ch. I, Decision on Libya’s Submissions Regarding the Arrest of Saif al-Islam Gaddafi, ICC-01/11-01/11-72, 7 March 2012, para. 12) notes:

‚[T]hat, although Libya is not a State Party to the Statute, it is under an obligation to cooperate with the Court. This obligation stems directly from the Charter of the United Nations, more precisely article 25 and Chapter VII of that Charter, and UNSC Resolution 1970/25 UNSC Resolution 1970 orders Libya to "cooperate fully" with the Court, which means that the Statute, and especially its Part IX, is the legal framework within which Libya must comply with the Surrender Request.’

In the operative part of the decision, the Pre-Trial Chamber further decides that the Rules, Rule 184 in particular, are applicable by virtue of the UN Security Council resolution in which it is ‘decided’ that ‚Libyan authorities shall cooperate fully’. The Registrar followed this approach by in the Libya situation (see Prosecutor v. Hussein, Registry, Request to the Republic of Sudan for the arrest and surrender of Abdel Raheem Muhammad Hussein, ICC-02/05-01/12-4, 13 March 2012). The Registrar adopted a more restrictive approach vis-à-vis other non-States Parties. In a request to Libya’s neighbours (Prosecutor v. Muammar Gaddafi, Saif al-Islam Gaddafi and al-Senussi, Registry, Request to States neighboring the Libyan Arab Jamhiriya for the arrest and surrender of Muammar Mohammed Abu Minyar Gaddafi, Saif al-Islam Gaddafi and Abdullah-Al Senussi, ICC-01/11-01/11-6 4 July 2011; see also Prosecutor v. Muammar Gaddafi, Saif al-Islam Gaddafi and al-Senussi, Registry, Request to the United Nations Security Council members that are not States Parties to the Rome Statute for the arrest and surrender of Muammar Mohammed Abu Minyar Gaddafi, Saif al-Islam Gaddafi and Abdullah-Al Senussi, ICC-01/11-01/11-8, 4 July 2011; Prosecutor v. Hussein, Registry, Request to the United Nations Security Council members that are not States Parties to the Rome Statute for the arrest and surrender of Abdel Raheem Muhammad Hussein, ICC-02/05-01/12-6 13 March 2012; Prosecutor v. al-Bashir, Registry, Request for the Arrest of Omar Hassan Ahmad al-Bashir to the Republic of India, ICC-02/05-01/09-252, 26 October 2015; Prosecutor v. Hussein, Registry, Request for the Arrest and Surrender of Abdel Raheem Muhammad Hussein to the United Arab Emirates, ICC-02/05-01/12-36, 22 December 2016, para. 10) the Registry merely ‘[i]nvite[d] Libya’s neighbouring States to inform the Registry when the persons sought by the Court are available for surrender pursuant to rule 184 of the Rules’ while requesting the arrest and surrender in a request made to the States Parties dated 4 July 2011 (Prosecutor v. Muammar Gaddafi, Saif al-Islam Gaddafi and al-Senussi, Registry, Request to all States Parties to the Rome Statute for the arrest and surrender of Muammar Mohammed Abu Minyar Gaddafi, Saif al-Islam Gaddafi and Abdullah-Al Senussi, ICC-01/11-01/11-7, 4 July 2011).
   The approach taken by the Registrar has, however, differed in the past. In the Darfur situation the Registrar (Prosecutor v. Harun and Kushayb, Registry, Request to the Arab Republic of Egypt, Eritrea, The Federal Democratic Republic of Ethiopia and the Libyan Araba Jamahiriya for the arrest and surrender of Ahmad Harun, ICC-02/05-01/07-15-tEn, 4 June 2007; Prosecutor v. al-Bashir, Registry, Request to all United Nations Security Council members that are not States Parties to the Rome Statute for the arrest and surrender of Omar al Bashir, ICC-02/05-01/09-8, 6 March 2009) had requested cooperation pursuant to Rule 184 from non-States Parties despite the fact that the UN Security Council resolution 1593 (2005) had ‘urge[d] all States […] to cooperation fully’. The wording by the Security Council, which matters greatly for the determination of the cooperation regime [e.g. Blommestijn/Ryngaert, 2010, 442], indicates that it was not willing to impose legal obligations on all Member States of the UN and thereby render applicable the entire Part IX of the Rome Statute and the Rules. The wording used by the Registrar, however, suggests that the requested States are considered to be legally obliged to satisfy the request. The underlying decisions by Pre-Trial Chamber I (Prosecutor v. Harun and Kushayb, PT Ch., Decision on the Prosecution Application under Article 58 (7) of the Statute, ICC-02/05-01/07-1-Corr, 27 April 2007; Prosecutor v. al-Bashir, PT Ch., Second Decision on the Prosecution’s Application for a Warrant of Arrest, ICC-02/05-01/09-94, 12 July 2010) do not provide any guidance in this regard.

Author:
Mayeul Hiéramente

Updated:
11 July 2017

[376] 1 (b) Inform the Registrar
Rule 184 (1) highlights, as does Rule 176 (2), the importance of the Registrar in the day-to-day management of the cooperation regime (see e.g. Prosecutor v. Lubanga, PT Ch. I, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, 24 February 2006, para. 116 et seq.; Prosecutor v. Kony et al., PT Ch. II, Decision on the Prosecutor’s Application for Warrants of Arrest under Article 58, ICC-02/04-01/05-1-US-Exp, 8 July 2005). As the competent organ to make arrangements with the State in matters of surrender, the Registrar reports to the respective Chamber (Prosecutor v. Kony et al., PT Ch. II, Order to the Registrar and the Prosecutor for the Submission of Information on the Status of the Execution of the Warrants of Arrest in the Situation of Uganda, ICC-02/04-01/05-111, 15 September 2006).

Author:
Mayeul Hiéramente

Updated:
11 July 2017

[377] 1 (c) The person sought
The person can only be sought for surrender for a criminal act that can be prosecuted by the Court. It is therefore without doubt that Rule 184 applies to surrender requests for investigations into alleged acts of genocide (Article 6), crimes against humanity (Article 7) and war crimes (Article 8). A decision by Pre-Trial Chamber II suggests that Rule 184 also applies to offences against the administration of justice as envisaged in Article 70 of the Rome Statute (see Prosecutor v. Bemba et al., Registry, Request for cooperation to the United Kingdom of the Netherlands in relation to Article 70 of the Rome Statute, ICC-01/05-01/13-2-Red, 20 November 2013). It should be noted that the Statute as well as the Rules set out limits to the application of the cooperation regime with regards to offenses against the administration of justice. Article 70 (2) sets out that ‘[t]he 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.’ Rule 165 (2) postulates that Article 59 and any Rules thereunder shall not apply. Furthermore, Rule 167 (1) indicates that the cooperation regime of the Statute is not directly applicable. Thus the cooperation regime differs for investigations into offenses against the administration of justice [see Piragoff, 2016, Article 70, para 15; Hiéramente et al., 2014, 1129]. Whether or not Rule 184 directly applies is, however, of lesser importance since it is obvious that a channel of communication has to exist notwithstanding the exact charges.

Author:
Mayeul Hiéramente

Updated:
11 July 2017

[378] 1 (d) Surrender
Rule 184 is instructive as to the procedure to be followed in the case of a surrender request by the Court. It was therefore explicitly referred to by Pre-Trial Chamber II in a decision regarding the applicability of the ‘speciality principle’ enshrined in Article 101 of the Statute (Prosecutor v. Ongwen, PT Ch. II, Decision on the applicability of article 101 of the Rome Statute in the proceedings against Dominc Ongwen, ICC-02/04-01/15-260, 7 July 2015). The Prosecutor had argued that Dominic Ongwen consented to the transfer from the Central African Republic to the Court, thereby making his appearance ‘voluntary’ in lieu of considering the transfer as a surrender in the sense of Article 101 (1). As a result, the Prosecutor had argued that the speciality rule could not apply. The Single Judge refuted the argument and stated that the acceptance on the part of Ongwen did not suffice to deny the transfer the quality of ‘surrender’ (para. 12). The interpretation suggested by the Prosecutor would deprive the requested State of its statutory rights and would be a disincentive to a constructive cooperation (para. 14). The fact that Ongwen was transferred as a detainee suggests, in the view of the Single Judge, a surrender (para. 13). More importantly, Article 59 did not mandate any particular proceedings on the part of the requested State (para. 10) so that the brevity of the transfer proceedings could not suffice to qualify the transfer as anything other than a ‘surrender’ (para. 11). Article 89 and Rule 184 did not proscribe a concrete procedure to be followed for the ‘delivering up’ (para. 4). The application for leave to appeal was rejected (Prosecutor v. Ongwen, PT Ch. II, Decision on the “Prosecution’s application for leave to appeal the ‘Decision on the applicability of article 101 of the Rome Statute in the proceedings against Dominc Ongwen’”, ICC-02/04-01/15-298, 1 September 2015). Regarding the interpretation of Rule 184 it should be noted that the Single Judge did not provide any limitations regarding the surrender process.

Author:
Mayeul Hiéramente

Updated:
11 July 2017

[379] (2) The person shall be surrendered to the Court by the date and in the manner agreed upon between the authorities of the requested State and the Registrar.
Rule 184 (2) envisages that national authorities agree with the Registrar on the date and manner of the surrender of the person. Harhoff and Mochochoko [Harhoff/Mochochoko, 2001, p. 652] highlight that the legal obligations of the national authorities with regards to the practical arrangements do therefore not stem from the Rules per se. It is indeed true that Rule 184 does not stipulate itself any time limits or modes of delivery of the person. The legal obligation stems from the Statute itself, namely Article 89 [Kreß/Prost, 2016, Article 89, para. 35] and is specified in the arrangements agreed upon with the competent organ of the Court. The semi-contractual approach might help to reduce the risk of non-compliance on the part of the national authorities [Harhoff/Mochochoko, 2001, p. 652].
   Such agreements can include, among others, arrangements regarding the mode of transport, the contact with the host State and the ICC Detention Centre, steps to be taken to guarantee a safe transit pursuant to Article 89 (3), as well as time-table for the transfer [see Harhoff/Mochochoko, 2001, p. 652]. In most circumstances, the requested State will require the support of the Registrar.

Author:
Mayeul Hiéramente

Updated:
11 July 2017

[380] 3. If circumstances prevent the surrender of the person by the date agreed, the authorities of the requested State and the Registrar shall agree upon a new date and manner by which the person shall be surrendered.
Sub-Rule 3
A postponement of the surrender does not allow for a release of the person sought for surrender. Rule 184 (3) clearly establishes that in case of (unexpected) delays in the surrender process a new date and, if necessary, manner of the surrender shall be agreed upon by the requested State and the Registrar. Rule 184 does not specify the ‘circumstances’ preventing the surrender so that Rule 184 (3) applies to any reason for the delay [Harhoff/Mochochoko, 2001, p. 651]. For the practical arrangements to be made by the Registrar the reason and responsibility for such delay are of lesser relevance. The obligation of the Registrar remains to come to a viable and timely agreement and to guarantee the transfer of the person to the Court. A failure to comply with the agreement under sub-Rule 2 or the refusal to enter into such practical arrangements altogether can – independent of the efforts to realize the transfer – be addressed via a finding of non-compliance pursuant to Article 87 (7).
   The decision by the drafters of the Rules to exclude the possibility of release from the scope of application of Rule 184 indicates that the arrested person shall remain in custody until the agreed upon surrender to the Court can be affected. Depending on the gravity of the crimes or offense (Article 70) the person is accused of as well as the delays occurring in the surrender process this could – at least in theory – call into question the proportionality of the detention. If such significant delays in the surrender process were to occur, the person could apply for interim release pursuant to Article 59 (3) before the national authorities [see Chaitidou/Hoven, 2016, 177 et seq.].

Author:
Mayeul Hiéramente

Updated:
7 August 2017

[381] 4. The Registrar shall maintain contact with the authorities of the host State in relation to the arrangements for the surrender of the person to the Court.
Sub-Rule 4
Rule 184 (4) stipulates that the Registrar shall remain in contact with the national authorities. This implies that the Registrar is entitled to communicate with the national authorities on all matters relevant to the surrender process. The communication is ongoing throughout the entire process [Kreß/Prost, 2016, Article 89, para. 25]. This entails the risk that Court officials are made aware of possible violations of the rights of the person sought for surrender by national authorities. In the Gbagbo case the Defence had argued that the arrest of Mr. Gbagbo violated fundamental rights of the accused and that the investigations by the ICC were tainted and should be terminated on the basis of the ‘abuse of process doctrine’. This, inter alia, referred to contacts between the Ivorian authorities and organs of the Court. In a decision dated 15 August 2012, Pre-Trial Chamber I emphasized that mere contacts, as envisaged in Rule 184 (see Prosecutor v. Gbagbo, PT Ch. I, Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12 (3), 19 (2), 21 (3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”, ICC-02/11-01-/11-212, 15 August 2012, para. 80; Prosecutor v. Gbagbo, Prosecutor, Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12 (3), 19 (2), 21 (3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129), ICC-02/11-01/11-167-Red, 28 June 2012, para. 29), do not suffice to attribute any possible violations of the rights of the person sought for surrender to the Court. The Chamber stated (para. 110):

‘The same holds true for the period between the notification of the request for arrest and surrender of Mr Gbagbo and his transfer to the Court. During this period, he was still detained by the Ivorian authorities and the conditions of his detention were within their competence. In particular, while organs of the Court were involved in the process of surrender of Mr Gbagbo to the Court, there is no evidence indicating any violation of Mr Gbagbo's fundamental rights that can in any way be attributed to the Court.’

The Pre-Trial Chamber I further held that Article 59 ‘cannot be applied to the period of time before the receipt of the custodial State of the request for arrest and surrender, even in cases where the person may already have been in the custody of that State, and regardless of the grounds for any such prior detention.’ It thereby concurred with the assertion by the Office of the Prosecutor ‘that there is no obligation or power of the Court or of the national authorities who conducted the arrest proceedings prior to transfer of the Suspect, to review the legality of the Suspect's prior period of detention for the national proceedings unrelated to the process before this Court, pursuant to Article 59(2) or Rule 184.’ (Prosecutor v. Gbagbo, Prosecutor, Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12 (3), 19 (2), 21 (3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129), ICC-02/11-01/11-167-Red, 28 June 2012, para. 42). The Chamber thereby strengthened the position of the Registrar and emphasized that a close communication with the authorities is a necessary condition for effective cooperation. Such contacts are permitted and necessary even in cases where (potential) violations of the rights of the person sought for surrender by national authorities could have occurred in the past.

Cross References
Article 59 (7), Article 89, Rule 176

Doctrine
1. Michiel Blommestijn and Cedric Ryngaert, Exploring the Obligations of States to Act upon the ICC’s Arrest Warrant for Omaar Al-Bashir, Zeitschrift für Internationale Strafrechtsdogmatik, no. 6, 2010, pp. 428-444.

2. Julien Cazala, “Article 89”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1835-1847.

3. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 637-670.

4. Mayeul Hieramente and Philipp Müller, “Barasa, Bribery and Beyond: Offences against the administration of justice at the International Criminal Court, International Criminal Law Review, vol. 14, no. 6, 2014, pp. 1122-1149.

5. Claus Kreß and Kimberly Prost, “Article 89”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2046-2058.

6. Donald K. Piragoff, “Article 70”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 1751-1759.

7. Astrid Reisinger-Coracini, “Cooperation from States and other Entities”, in Sluiter et al. (eds.), International Criminal Procedure. Rules and Principles, Oxford University Press, Oxford, 2013, pp. 95-115.

Author:
Mayeul Hieramente

Updated:
7 August 2017

[382] 2. Where the Court has determined that the case is inadmissible under article 17, paragraph 1 (a), the Court shall make arrangements, as appropriate, for the transfer of the person to a State whose investigation or prosecution has formed the basis of the successful challenge to admissibility, unless the State that originally surrendered the person requests his or her return.
It is worth noting that Rule 62 is complemented by Rule 185(2) which details the effects on the custody of the defendant following a decision declaring the case inadmissible. It follows from the text of this rule that a successful admissibility challenge by a State does not entail the unconditional surrender of the defendant to the State which has brought the challenge. First, the negotiating history reveals that the drafters envisaged the possibility for a State to challenge admissibility on the basis of investigations or prosecutions taking place in a third State [Harhoff, Frederik et. al., 2001, p. 655]. In this case, the person must be surrendered to that third State whose investigation or prosecution has formed the basis of the successful challenge. Second, if the challenging State is not the State that has surrendered the defendant to the Court, Rule 185(2) gives priority to the surrendering State in case of competing requests for the transfer of the person following a successful admissibility challenge. In this regard, it was observed that “even if the surrendering State has not formally requested the return of the person, the Registrar would probably still be obliged under the international legal extradition regime to inform the surrendering State of the Court’s intention to proceed with a request for transfer of the person to the challenging State.” [Harhoff, Frederik et. al., 2001, p. 655].

Crossreference:
Article 19(10)

Doctrine:
Holmes, John T., Jurisdiction and Admissibility, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, 321 - 348, Transnational Publishers Inc., 2001, pp. 345 – 346 
   Harhoff, Frederik and Mochochoko, Phakiso, International Cooperation and Judicial Assistance, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, 637 - 671, Transnational Publishers Inc., 2001, p. 655.

Author: Mohamed Abdou

[383] Rule 186 Competing requests in the context of a challenge to the admissibility of the case

General Remarks
Rule 186 refers to Article 90 which deals with a situation of competing requests by the Court (for surrender) and another State (for extradition). Article 90 takes note of the fact that extradition requests by States other than the requested State (the ‘requesting State’) – States Parties or not – can occur and might even take precedence over a request for surrender by the Court. Article 90(8) addresses a very peculiar situation in this regard. It deals with the possible outcome that the Court– upon review of the content of the competing requests – has established that the extradition request by the other State takes precedence over the surrender request and that the Court has thereby held that the case is inadmissible. In such a situation the requested State would be entitled – as far as its obligations under the Statute and the Rules are concerned – to extradite the person to the State which has made the competing request. The requested State might, however, decide – for legal, political or other reasons – to refuse extradition to the requesting State.

The requested State’s refusal of the extradition might affect the assessment whether or not the case is indeed admissible. The refusal to extradite is a new fact [Cazala, 2012, Article 90, p. 1861; Meißner, 2003, p. 151] that allows the Prosecutor to request a review of the admissibility decision by virtue of Article 19 (10). Rule 186 is meant to guarantee that the Prosecution is informed about this new fact without undue delay [Harhoff/Mochochoko, 2001, p. 656].

Preparatory Works
Rule 186 is based on the French proposal (PCNICC/1999/WGRPE(9)/DP.2, Rule 9.10(b)) dated 19 November 1999. The proposal reads as follows:

‘In situations described in article 90, paragraph 8, the decision of the requested State shall be transmitted to the Prosecutor, who shall act, if necessary, in accordance with article 19, paragraph 10.’

The re-drafting was meant to clarify that the requested State is solely under the obligation to notify one organ of the Court: The Prosecutor [Harhoff/Mochochoko, 2001, p. 656]. Contrary to the French proposal, Rule 186 is only addressed to the requested State and does not give any guidance to the Prosecutor who, in the French proposal, would have been encouraged to seek a review of the decision by the Pre-Trial Chamber pursuant to Article 19 (10). As pointed out by Cazala [Cazala, 2012, Article 90, p. 1861], Rule 186 highlights the raison d’être of Article 90 (8).

Author:
Mayeul Hieramente

Updated:
8 August 2017

[384] i) Notification of its decision
Both Article 90 (8) and Rule 186 specify that the ‘decision’ not to extradite to the requesting State shall be notified to the Prosecutor. This presupposes that an actual decision has been made by the national authorities. Commentators [Harhoff/Mochochoko, 2001, p. 656] have pointed out that the Court may wish to reconsider its decision of admissibility if extradition to the requesting State is ‘subsequently refused or fails for any reason’ [see also Rinoldi/Parisi, 1999, p. 356]. For that matter it is reasonable to interpret both Article 90 (8) and Rule 186 in a way to require information to the Prosecutor if the extradition did not occur in a reasonable time after the national authorities have been made aware of the inadmissibility decision. The fact that an extradition did not take place could, in and of itself, be a relevant new fact in the sense of Article 19 (10) as it might indicate a ‘refusal’ to extradite. This might be relevant as it leads to an inability of the requesting State to effectively prosecute the crimes for which prosecution is sought after extradition [see Meißner, 2003, p. 152 with further references]. After all, the pending extradition request of the requesting State, willing and able to prosecute the crimes the Court itself was seeking prosecution for [see Meißner, 2003, p. 151], is the reason that the Court declared the case inadmissible. Whether or not the requested State is willing and able to prosecute was, most likely, not addressed in the admissibility decision by the Court. Any evidence that the requested State is responsible for the refusal to extradite or even intended to grant de facto immunity to the person might nonetheless be of relevance for the Court. The Court will certainly address the behaviour by the requested State in any subsequent decision it intends to make [Rinoldi/Parisi, 1999, p. 356], be it pursuant to Article 19 (10) or Article 87 (7).

Author:
Mayeul Hieramente

Updated:
8 August 2017

[385] ii) To the Prosecutor
Contrary to many other provisions of the cooperation regime, Rule 186 explicitly names the Prosecutor as the recipient of the notification. The purpose is to avoid any time delays caused by a transmission of the information via the Registrar [Harhoff/Mochochoko, 2001, p. 656]. Furthermore, the notification is meant to allow the Prosecution to review the new facts [Kreß/Prost, 2016, Article 90, para. 29] and – if fully satisfied – seek a review of the admissibility decision under Article 19 (10). Since it is the sole prerogative of the Prosecutor to seek a review of an admissibility decision [see Hall/Nsereko/Ventura, 2016, Article 19, para. 65 et seq.], there is no need to opt for the normal communication channel via the Registrar.

Cross References
Article 19 (10), Article 90 (8)

Doctrine
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 617.
2. Julien Cazala, “Article 90”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1849-1861.
3. Christopher K. Hall, Daniel D. Ntanda and Manuel J. Ventura, “Article 19”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 849-898.
4. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 637-670.
5. Claus Kreß and Kimberly Prost, “Article 90”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2059-2067.
6. Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, C.H. Beck, München, 2003.
7. Dine Rinoldi and Nicoletta Parisi, “International Cooperation and Judicial Assistance between States Parties and the International Criminal Court”, in Flavia Lattanzi and William Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, vol. I, 1999, pp. 339-390.

Author:
Mayeul Hieramente

Updated:
8 August 2017

[386] Rule 187 Translation of documents accompanying request for surrender
General Remarks
Rule 187 refers to Article 67 which addresses the rights of the accused. Cazala points out that such reference to an Article that applies to the ‘accused’ is indeed rather surprising considering the early stage the provision comes into play [Cazala, 2012, Article 91, p. 1869]. The Rule highlights the duty of care the Court has vis-à-vis a person sought for arrest and surrender [Cazala, 2012, Article 91, p. 1870]. The Rule also eases the burden of the requested State inasmuch as it does not face any additional obligation to translate the documentation submitted with the request by the Court [de Gurmendi/Friman, p. 303; Meißner, 2003, p. 116]. Rule 187 complements Article 67 (1) (a) which articulates the right of the accused ‘[t] 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’. To fully guarantee that the rights accorded to the accused by virtue of the Statute are respected, Rule 187 stipulates the organisational measures to be taken to provide the accused with a translation at the earliest possible moment, namely his arrest by national authorities upon request of the Court. It allows the person sought for surrender to prepare his defence as soon as he is apprehended by the authorities of the requested State. 
   Rule 187 is supplemented by Rule 117 (1) which obliges the Court to verify that the translation provided in the request is handed over to the person sought for surrender. Upon receipt of the translation, the person can verify the existence and content of an arrest warrant against him or her [Harhoff/Mochochoko, 2001, p. 651]. This allows the person sought for surrender to actively participate in the surrender proceedings and, if he or she so wishes, to challenge the surrender as envisaged, e.g. in Article 89 (2). Rule 187 gains prominence in a situation where the person sought for surrender does not fully understand and speak the language designated by the requested State for official communication under Part IX of the Statute. In practice, such a situation can occur where the arrest has been made by a State other than the home state of the person sought for surrender or where the person is from a linguistic minority [Harhoff/Mochochoko, 2001, p. 651]. Given the current practice of relatively widespread requests for arrest and surrender (see e.g. Prosecutor v. al-Bashir, Registrar, Supplementary Request to all States Parties to the Rome Statute for the Arrest and Surrender of Omar Hassan Ahmad al Bashir, ICC-02/05-01/09-96, 21 July 2010) it is not unlikely that the person sought for surrender does not speak the official language of a requested State. Especially in cases where the person holds no official position in government, it can be difficult to assess the language spoken and understood by the person sought for arrest and surrender [see also Schabas, 2016, Article 91, p. 1306]. In such a situation, the Chamber can require the Registrar to collect additional information in order to determine the language(s) spoken by the person whose arrest is sought (e.g. Prosecutor v. Katanga, PT Ch. I, Order for a Report of Additional Information on the Detention and Surrender of the Detainee Germain Katanga, ICC-01/04-01/07-45, 26 October 2007; Prosecutor v. Katanga, Registrar, Report of the Registry on the Additional Information Concerning the Languages Spoken, Written and Understood by Germain Katanga, ICC-01/04-01/07-62-tENG, 9 November 2007) as well as the level of proficiency regarding the official working languages of the Court. It may be taken into account that the person sought for arrest and surrender can benefit of assistance of counsel to understand complex legal issues (Prosecutor v. Katanga, Registrar, Report of the Registry on the Additional Information Concerning the Languages Spoken, Written and Understood by Germain Katanga, ICC-01/04-01/07-62-tENG, 9 November 2007).
   Rule 187 follows the approach taken by other international tribunals regarding the translation of documents [Cazala, 2012, Article 91, p. 1869 with further references]. It is part of a detailed regulatory framework which addresses the need for translation and interpretation in the different stages of the proceedings [for an overview see de Gurmendi/Friman, 200, p. 310].

Author:
Mayeul Hieramente

Updated:
11 August 2017

[387] i) Request under Article 91
The Rule complements Article 91 which addresses the ‘normal’ request for arrest and surrender. The wording of Rule 187 indicates that it does not apply to a provisional request pursuant to Article 92. The language of the documentation to be provided in such an urgent case is solely determined by Article 87 (2), which refers to the official language of the requested State [Meißner, 2003, p. 178]. If the circumstances of the provisional request for arrest permit, it is, however, in the interest of both the person sought and the Court to supplement such provisional request with a translation in a language the person fully understands and speaks. This allows the person to fully comprehend the charges against him or her and establishes the necessary conditions for an informed decision regarding a possible ‘consent to surrender’ as envisaged in Article 92 (3). Such a consent can be beneficial to the person and the Court [Kreß/Prost, 2016, Article 92, para. 13]. The Court is entitled to adapt the higher standards applicable to a request under Article 91 to a provisional request [see Cazala, 2012, Article 92, p. 1876].

Author:
Mayeul Hieramente

Updated: 
11 August 2017

[388] ii) As appropriate
Rule 187 establishes the principle that every request for arrest and surrender pursuant to Article 91 is to be supplemented by the necessary translations. The fact that a translation should only be provided in situation where it is deemed ‘appropriate’ indicates the possibility of an exception. Kreß and Prost [Kreß/Prost, 2016, Article 91, para. 7] rightly note that the term ‘appropriate’ (solely) allows for a delay of the translation. The translation has to be provided subsequently. In light of Rule 117 (1), which mandates that the Court ensures that the arrested person receives a copy of the arrest warrant and the necessary provisions in a language that the person fully understands and speaks, it should be clear that Rule 187 does not permit the Court to refrain from providing a (necessary) translation of such documents altogether.

Author:
Mayeul Hieramente

Updated:
11 August 2017

[389] iii) translation
The Court has to provide for the translation [Kreß/Prost, 2016, Article 91, para. 7]. Rule 187 does not include any obligation on the part of the requested State. The Rule does not explicitly specify the Court organ responsible for translating the warrant of arrest. This follows from the general framework of the cooperation regime. There is no doubt that the Registrar is the organ tasked with taking the necessary steps to translate the relevant documents and that it is the Registrar who is mandated to ensure that the requested State and subsequently the person sought for surrender receives a translated copy of the warrant (Prosecutor v. Odhiambo, PT Ch. II, Request for Arrest and Surrender of Okhiot Odhiambo, ICC-02/04-01/05-15, 8 July 2005; Prosecutor v. Kony et al., PT Ch. II, Request to the Central African Republic for Arrest and Surrender of Dominic Ongwen, ICC-02/04-01/05-227, 21 March 2007; see Schabas, 2016, Article 91, p. 1306). The Registrar can rely on the translation and interpretation services (see Rule 42) of the Court to fulfil its mandate.

Author:
Mayeul Hieramente

Updated:
11 August 2017

[390] a) translation of the arrest warrant
The submission to the requested State has to include a translation of the arrest warrant itself. Nowadays, it is common practice at the ICC that the respective Pre-Trial Chamber provides for a distinct document containing the ‘arrest warrant’. If the arrest warrant refers to annexes these additional documents are also to be translated (see Prosecutor v. Odhiambo, PT Ch. II, Request for Arrest and Surrender of Okhiot Odhiambo, ICC-02/04-01/05-15, 8 July 2005). Otherwise the person whose arrest is sought might not be in a position to fully comprehend the nature and content of the charges determined to be relevant by the Pre-Trial Chamber in question

Author:
Mayeul Hieramente

Updated:
11 August 2017

[391] i) Translation of the judgment of conviction
In the rare case that a person is sought for sentencing or detention purposes only, the Court has to provide a translation of the judgment of conviction. The wording of Rule 187 is somewhat at odds with Article 91 (3), which stipulates that a request for arrest and surrender of a person already convicted be supported by a copy of the arrest warrant and a copy of the judgment of conviction. A strict interpretation of Rule 187 would indicate that a translation of the judgment would suffice. Such an interpretation does not, however, fully take into consideration the purpose of Rule 187. The Rule should therefore be interpreted in an extensive manner so as to guarantee that the person sought for arrest and surrender by virtue of Article 91 (3) will be informed about the content of the judgment as well as the reason he or she is sought for arrest. The reasons for an arrest will certainly be different than the facts underlying the convictions and might be far from clear.

Author:
Mayeul Hieramente

Updated:
11 August 2017

[392] ii) translation of the relevant provisions
Rule 187 clearly establishes that the relevant provisions of the Statute and the Rules of Procedure and Evidence have to be translated and added to a request under Article 91. Neither the Rules nor the Statute explicitly determine which provisions ought to be considered ‘relevant’. De Gurmendi and Friman point out that the obligation under Rule 187 encompasses all provisions dealing with the rights of the accused [de Gurmendi/Friman, 2000, p. 303]. Pre-Trial Chamber II (Prosecutor v. Ongwen, PT Ch. II, Warrant of Arrest for Dominic Ongwen, ICC-02/04-01/05-10, 8 July 2005) provided the following list of Articles and Rules of which Dominic Ongwen should be advised of after his arrest in ‘a language he fully understands and speaks’:

Article 19 (2), Article 55 (2), Article 57, Article 59, Article 60, Article 61, Article 67, Rule 21, Rule 112, Rule 117, Rule 118, Rule 119, Rule 120, Rule 121, Rule 122, Rule 123, Rule 124, Rule 187.

While Pre-Trial Chamber II only requested that the person whose arrest is sought be ‘advised of’ the rights as set forth in these provisions, the explicit reference to the provisions indicates which provisions the judges consider relevant in a situation of arrest. Considering the fact that Rule 187 does impose an obligation on the Court and not the requested States to translate the relevant documents and provisions into a language the person understands, it should be clear that a translation of the provisions mentioned above is a pre-condition for any advice given to the person sought for surrender. The list provided by Pre-Trial Chamber II should therefore be considered as the basis for any request under Article 91 and Rule 187. Such request should also contain a translation of Article 89 (2) to inform the person of the possibility of a ne bis in idem challenge before a national court. In order to make the person aware of such an admissibility challenge he or she should also be informed of the content of Article 17 (1) and Article 20 (3). Finally, it is advisable to include a translation of the definition of the crime as enshrined in Article 6, 7 or 8. As the Court has also applied Rule 187 to offenses against the administration of justice (see Prosecutor v. Bemba et al., Registry, Request for cooperation to the United Kingdom of the Netherlands in relation to Article 70 of the Rome Statute, ICC-01/05-01/13-2-Red, 20 November 2013) the person sought for arrest should be provided with a translation of Article 70 if he or she is accused of such an offense.

Further translations
Some observers [Harhoff/Mochochoko, 2001, p. 651] have rightly remarked that Rule 187 does not require a translation of the cooperation request itself. A translation of the entire cooperation request might increase the transparency of the surrender process and is generally to be encouraged. This, however, is not mandatory under the Statute and the Rules. The language of the request for arrest and surrender is instead determined in accordance with Article 87 (2) and Rules 178 and 179. Rule 187 is meant to guarantee the minimum protection appropriate to the (early) stage of the proceedings. Additional material will then be provided at a later stage. Article 67 (1) guarantees that the accused is informed ‘in detail’ about the ‘nature, cause and content’ of the charge and that he can communicate freely with counsel and be provided with facilities to prepare his defence [see also Harhoff/Mochochoko, 2001, p. 651]. However, it does not state that such detailed information should be included in a request pursuant to Article 91.

Cross References
Article 67 (1) (a), Article 91, Rule 42, Rule 117 (1), Rules 178, Rule 179

Doctrine
1. Julien Cazala, “Article 91”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1873-1880.
2.Julien Cazala, “Article 92”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1863-1871.
3. Silvia Fernández de Gurmendi and Hakan Friman, “The Rules of Procedure and Evidence of the International Criminal Court”, Yearbook of International Humanitarian Law, vol. 3, 2000, pp. 289-336.
4.Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 637-670.
5. Claus Kreß and Kimberly Prost, “Article 91”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2068-2073.
6. Claus Kreß and Kimberly Prost, “Article 92”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2074-2077.
7. Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, C.H. Beck, München, 2003.
8. William Schabas, “Article 91”, in William Schabas, The International Criminal Court. A Commentary on the Rome Statute, Second edition, Oxford University Press, Oxford, 2016, pp. 1304-1307.

Author:
Mayeul Hieramente

Updated:
11 August 2017

[393] For the purposes of article 92, paragraph 3, the time limit for receipt by the requested State of the request for surrender and the documents supporting the request shall be 60 days from the date of the provisional arrest.
Article 92(3) which concerns provisional arrest and introduces a time limit for receiving the request for surrender and the documents supporting the request. The time limit is specified by rule 188 to 60 Days.
   Rule 188 only regulates situations where the person has been arrested. If the person has not been arrested, the requested State is still under an obligation to arrest and surrender the person even if the required documents have not been submitted within the time limit. This follows from Article 92(4), see Harhoff and Mochochoko, p. 658.

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 612.
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 658.
3. Claus Kreß and Kimberly Prost, “Article 92”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2076-2077.

Author:
Mark Klamberg

Updated: 
9 November 2017

[394] When a person has consented to surrender in accordance with the provisions of article 92, paragraph 3, and the requested State proceeds to surrender the person to the Court, the Court shall not be required to provide the documents described in article 91 unless the requested State indicates otherwise.
Rule 189 concerns a simplified surrender procedure. Article 92(3) provides that the person who has been provisionally arrested may consent to surrender before the expiration of the time limit for transmission of doucments 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. Rule 189 clarifies that in such cases the Court shall not be required to provide the documents described in article 91 unless the requested State indicates otherwise.

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 612.
2. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 428-429.
3. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 659.

Author:
Mark Klamberg

Updated: 
9 November 2017

[395] When making a request under article 93, paragraph 1 (e), with respect to a witness, the Court shall annex an instruction, concerning rule 74 relating to selfincrimination, to be provided to the witness in question, in a language that the person fully understands and speaks.
Rule 190 has the purpose of ensuring that witnesses are instructed on the rules relating to selfincrimination. It balances different interests, witnesses have to be encouraged to testify on a voluntary basis, if they come they have to answer all questions. Thus they need to be informed about the immunity that rule 74 offers against prosecution (Harhoff and Mochochoko, p. 660). The dilemma of voluntary appearance has somewhat been resolved by Ruto and Sang, A. Ch., Judgment on the appeals of William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V (A) of 17 April 2014 entitled "Decision on Prosecutor's Application for Witness Summonses and resulting Request for State Party Cooperation", ICC-01/09-01/11-1598, 9 October 2014, para. 2 where the Appeals Chamber states that "the Court may request a State Party to compel witnesses to appear before the Court sitting in situ in the State Party's territory or by way of video-link.". See also Ruto and Sang, Decision on Prosecutor's Application for Witness Summonses and resulting Request for State Party Cooperation, ICC-01/09-01/11-1274, 17 April 2014, paras. 84-140.
   States Parties shall pursuant to article 93(1)(e) facilitate the voluntary appearance of persons as witnesses or experts before the Court. When making a request under article 93(1)(e), the Court has an obligation under rule 190 to annex an instruction concerning rule 74 relating to selfincrimination. The requested state will serve the summons together with this instruction to the person concerned.

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 630.
2. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 429.
3. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 659-660.
4. Claus Kreß and Kimberly Prost, “Article 93”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2088.

Author:
Mark Klamberg

Updated: 
9 November 2017

[396] The Chamber dealing with the case, on its own motion or at the request of the Prosecutor, defence or witness or expert concerned, may decide, after taking into account the views of the Prosecutor and the witness or expert concerned, to provide the assurance described in article 93, paragraph 2.
The Court have, pursuant to article 93(2), 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. This a familiar feature in bilateral and multilateral Treaties on Mutual assistance in criminal Matters called "safe conduct provision" (Gartner, p. 429).
   While rule 190 provides that the Court has an obligation under rule 190 to annex an instruction concerning selfincrimination, rule 191 deals with the procedure for providing such information.

Doctrine:
1. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 429-430.
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 660-661.
3. Claus Kreß and Kimberly Prost, “Article 93”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2091.

Author:
Mark Klamberg

Updated: 
9 November 2017

[397] 1. Transfer of a person in custody to the Court in accordance with article 93, paragraph 7, shall be arranged by the national authorities concerned in liaison with the Registrar and the authorities of the host State.

2. The Registrar shall ensure the proper conduct of the transfer, including the supervision of the person while in the custody of the Court.

3. The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber.

4. In accordance with article 93, paragraph 7 (b), when the purposes of the transfer have been fulfilled, the Registrar shall arrange for the return of the person in custody to the requested State.
Rule 192 relates to article 93(7) which concerns requests by the Court for the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. This provision does not apply to the transfer of persons to the Court for the purpose of prosecution (Harhoff and Mochochoko, p. 662). Provisions on temporary transfer of persons in custody is a familiar feature in bilateral and multilateral Treaties on Mutual Assistance in Criminal Matters (Kreß and Prost, p. 2094).
    Sub-rule 3 gives the the person in custody the right to raise matters concerning the conditions of his or her detention with the relevant Chamber which suggests that the person concerned can challenge the Court's subsequent custody (Harhoff and Mochochoko, p. 662).
   In Katanga and Ngudjolo, the Trial Chamber noted that the witnesses had consented to the temporary transfer, Katanga and Ngudjolo, T. Ch. II, Version publique expurgée de «Décision relative à la requête de la Défense de Germain Katanga tendant à l'amendement de la décision sur sa requête visant à obtenir la coopération de la République démocratique du Congo en vue de la comparution de témoins détenus, 3 May 20111, para. 6. To make the transfer dependant on the consent collides with the Power of the Court under article 64(6)(b) to require the attendance and testimony of witnesses (Kreß and Prost, p. 2095).
  A series of interesting decisions relates to the request by three witnesses in Katanga and Ngudjolo who had been transferred in custdoy from the DRC to testify, see Katanga and Ngudjolo, T. Ch. II, Decision on the application for the interim release of detained Witnesses DRC-D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350, 1 October 2013 and Katanga and Ngudjolo, A. Ch., Prosecutor v. Katanga, Decision on the Admissibility of the Appeal Against the "Decision on the Application for the Interim Release of Detained Witnesses DRC-D02-P0236, DRC-D02-P0228 and DRC-D02-P0350", ICC-01/04-01/07-3424.20 January, 2014.

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 629. 
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 661-662.
3. Claus Kreß and Kimberly Prost, “Article 93”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2094-2098.

Author:
Mark Klamberg

Updated: 
9 November 2017

[398] 1. The Chamber that is considering the case may order the temporary transfer from the State of enforcement to the seat of the Court of any person sentenced by the Court whose testimony or other assistance is necessary to the Court. The provisions of article 93, paragraph 7, shall not apply.

2. The Registrar shall ensure the proper conduct of the transfer, in liaison with the authorities of the State of enforcement and the authorities of the host State. When the purposes of the transfer have been fulfilled, the Court shall return the sentenced person to the State of enforcement.

3. The person shall be kept in custody during his or her presence before the Court. The entire period of detention spent at the seat of the Court shall be deducted from the sentence remaining to be served.
Rule 193 is similar to rule 192, the present rule differs as it covers witnesses who have previously been sentenced by the Court and now serves the sentence imposed by the Court in the State of enforcement.
   Sub-rule 1 provides that the provisions of article 93(7) shall not apply. The consequence is that temporary transfer of a person that is convicted by Court is not, as opposed to a person convicted by a domestic Court in the requested State, dependant on the consent of the person concerned. However, this matter may be subject to conditions laid down in the agreement oof enforcement between the Court and the State of enforcement (Harhoff and Mochochoko, p. 663).

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 629.
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 663.
3. Claus Kreß and Kimberly Prost, “Article 87”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2095.

Author:
Mark Klamberg

Updated: 
9 November 2017

[391] Cooperation requested from the Court
General remarks
Rule194 specifically focuses on the application of Article 93(10) regarding cooperation requested by State Parties and non-State Parties to the Court. It includes procedural instructions to the implementation of such requests. It serves as a practical complement to the Rome Statute, as relevant Article 93 and Article 96 mainly focus on requests issued by the Court.

Author:
ZHANG Yueyao

[400] 1. In accordance with article 93, paragraph 10, and consistent with article 96, mutatis mutandis, a State may transmit to the Court a request for cooperation or assistance to the Court, either in or accompanied by a translation into one of the working languages of the Court.
2. Requests described in sub-rule 1 are to be sent to the Registrar, which shall transmit them, as appropriate, either to the Prosecutor or to the Chamber concerned.
Requests described in sub-rule 1 are to be sent to the Registrar, which shall transmit them, as appropriate, either to the Prosecutor or to the Chamber concerned.
    Paragraphs 1 and 2 provide procedure requirements for requests make to the Court. They are complementary to the requirements in Article 96, as it reaffirms general requirements concerning language and the transmit organ. According to paragraph 1 and 2, the request should be in writing or accompanied by a translation into one of the working languages of the Court. The Registrar is the qualified transmit organ of the request either to the Prosecutor or the concerned Chamber.

Author:
ZHANG Yueyao

[401] 3. If protective measures within the meaning of article 68 have been adopted, the Prosecutor or Chamber, as appropriate, shall consider the views of the Chamber which ordered the measures as well as those of the relevant victim or witness, before deciding on the request.
Paragraph 3 addresses the duty of the Prosecutor or the Chamber when deciding whether to grant the request the Chamber has received. The intention is to ensure the protection of victims and witnesses. The Prosecutor or Chamber is required to take account of the views of the Chamber that ordered the protective measures, and the health, safety, dignity and security of the victims and witnesses.
   This paragraph is also a reaffirmation of the ICC Preparatory Committee Draft Statute. Protection of victim and witness was part of requirements on the form and contents of the request in the Draft Statute. The ICC Preparatory Committee Draft Statute, A/CONF. 183/2/Add.1, article 88(4) and article 90(8)(b), p. 147, which share the same text provide that “[t]he Court may withhold, in accordance with article 68, from the requested State [or a State making a request under paragraph 6] specific information about any victims, potential witnesses and their families if it considers that this is necessary to ensure their safety or physical and psychological well-being. Any information that is made available under this article to the requested State shall be provided and handled in a manner that protects the safety or physical or psychological well-being of any victims, potential witnesses and their families.” The final Rome Statute removes such clauses from the contents requirements, combines into Article 68 (“Protection of the victims and witnesses and their participation in the proceedings”).

Author:
ZHANG Yueyao

[402] 4. If the request relates to documents or evidence as described in article 93, paragraph 10 (b) (ii), the Prosecutor or Chamber, as appropriate, shall obtain the written consent of the relevant State before proceeding with the request.
Sub-rule 4 reaffirms that the State that has provided assistance in getting documents or evidence under Article 93(10)(b) (ii) should give consent to the transmission of such documents or evidence. The consent should be in writing, and the Prosecutor of Chamber is required to obtain such written consent in advance for the integrity of the request.

Author:
ZHANG Yueyao

[403] 5. When the Court decides to grant the request for cooperation or assistance from a State, the request shall be executed, insofar as possible, following any procedure outlined therein by the requesting State and permitting persons specified in the request to be present.
Sub-rule 5 specified the duty of the Court when it grants the request from a State. The Court is required to follow the procedures requested by the State, and to permit, insofar as possible, the presence of the persons specified in the request in the investigation. Accordingly, the requesting State should provide as much detailed information as possible regarding the procedures and the persons sought. The requesting State is also entitled to the access to the statements, documents or other evidences obtained by the Court.  

Doctrine:
Harhoff, Frederik, Mochochoko, Phakiso, International Cooperation and Assistance in Roy S. Lee and others (eds.), The International Criminal Court - Elements of Crimes and Rules of Procedure and Evidence, New York, Transnational Publishers 2001 p. 664

Author:
ZHANG Yueyao

[404] 1. When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court.

2. The Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court.
The underlying problem that article 98 and rule 195 seek to adress is that all states seek to protect their diplomats and official agens as well as their diplomatic and State property abroad. This migt appear less of a problem vis-à-vis States Parties, they have agreed ti waive the immunity of their own officials. It becomes more problematic in relation to non-States Parties when their officials are at risk of being surrendered to the Court (Harhoff and Mochochoko, pp. 665-666).
   Sub-rule 1 provides for a notification process and information exchange of information in case of a conflict of obligations. The requested State may does bring the matter to the attention of the Court and advise of the Court of the necessity for the Court to seek the relevant waiver of immunity (Kreß and Prost, pp. 2141).
   Sub-rule 2 which underpins Article 98(2) caused considerable problems during the negotiations on the rules of procedure and evidence. USA tabled already during the negotiations of the Rome Statute a proposal which sought to ensure that the Court would always act in accordance with its obligations, i.e. the Court could itself enter into an agreement and thereby accept an obligation. The proposal was rejected and article 98(2) only applies to those agreements between a sending state and a receiving state. The term "sending state" implies that the provision mainly relates to Status of Forces Agreements (SOFA). The idea behind this sub-rule was solve legal conflicts which may arise because of existing SOFAs. It should be noted that Article 98(2) was not designed to encourage for States to conclude new SOFAs (Gartner, p. 430; (Kreß and Prost, pp. 2142-2143).

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, pp. 620 and 623. 
2. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 430-433.
3. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 664-669.
4. Claus Kreß and Kimberly Prost, “Article 98”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2117-2146.

Author:
Mark Klamberg

Updated: 
13 December 2017

[405] A person surrendered to the Court may provide views on a perceived violation of the provisions of article 101, paragraph 1.
Rule 196 concerns the speciality rule and underpins Article 101 which provides that "[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".
    A person that is surrendered may claim that there has been a violation of the speciality rule. This raises a question that was discussed during the negotiations on rule 196  whether the speciality rule is a right of the surrendered person or the right of the requested state. The prevailing view in inter-State practice is that a violation of the speciality rule can only be claimed by the requested state and not by the extradited person. Rule 196 follows this view, the surrendered person may only provide views (Gartner, p. 433).

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 613. 
2. Irene Gartner, "The Rules of Procedure and Evidence on Co-operation and Enforcement", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 433.
3. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001,  p. 670.
4. Peter Wilkitziki, “Article 101”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2167.

Author:
Mark Klamberg

Updated: 
13 December 2017

[406] When the Court has requested a waiver of the requirements of article 101, paragraph 1, the requested State may ask the Court to obtain and provide the views of the person surrendered to the Court.
Rule 197 underpins article 101(2) which provides that the Court shall provide "additional information" when it seeks to include new charges to be brought against the surrendered person, thus waiving the requirements that follow from the rule of speciality. Rule 197 provides that the requested State may ask the Court to obtain and provide the views of the person surrendered to the Court. During the negotiations there was a debate whether it was a right for the person surrendered to be heard or whether this was a matter for between States only. The compromise was to allow the views of the person to be provided (Harhoff and Mochochoko, p. 670).

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 613. 
2. Frederick Harhoff and Phakiso Mochochoko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001,  p. 670.
3. Peter Wilkitziki, “Article 101”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, p. 2167.

Author:
Mark Klamberg

Updated: 
13 December 2017