ich it has no extradition treaty, it should enable itself to treat the Rome Statute as the legal basis of extradition in respect of those crimes.
Postponement of requests for surrender and ne bis in idem
Description
The competent judicial authority in the custodial State must make several determinations when the arrested person is first brought before it, namely that the warrant applies to the person, the person has been arrested in accordance with the proper process, and the person's rights have been respected (article 59 (2)(a) - (c)). However, none of these provide grounds for refusal to surrender. Article 97(b) requires States to consult with the Court "without delay in order to resolve the matter" if, for example, the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant. States Parties can decide what they wish to do at the national level where the proper process was not followed, or the person's rights were not respected. But States Parties cannot refuse to surrender the person because of such matters, nor does the Statute make any provision for them to postpone execution of the request for surrender in these circumstances. Where the person cannot be located at all, despite the best efforts of the requested State, the State must also "consult with the Court without delay in order to resolve the matter" (article 97(b).
Ne bis in idem
There is, however, one instance where States may be able to postpone the execution of the request for surrender. In accordance with articles 20 (3) and 89 (2), the person sought for surrender may bring a challenge before a national court on the basis of the principle of ne bis in idem. Under article 20 (3), this principle means: if the person has already been tried before for conduct that would constitute genocide, a crime against humanity, or a war crime, as defined by the Statute, the ICC will not try the person with respect to the same conduct. The only exception to this principle is discussed below in the section "Complementarity".
If the person makes such a challenge, the requested State is required to "consult immediately with the Court to determine if there has been a relevant ruling on admissibility" (article 89 (2)). Such a ruling may come about in the following manner. Under article 19 (1), the ICC must satisfy itself that it has jurisdiction in any case brought before it, and one of the considerations is the admissibility of the case. Under article 17 (1)(c), the Court is required to determine that a case is inadmissible where the person concerned has already been tried for conduct that is the subject of the complaint. The Prosecutor may still request the Pre-Trial Chamber to authorise an investigation where there is some uncertainty over the State's unwillingness or inability to pursue the prosecution genuinely itself (article 18 (2)). The State concerned or the Prosecutor can appeal to the Appeals Chamber on this issue (article 18 (4)). Thus there are several opportunities for rulings on admissibility.
If the Court has already determined that the case is admissible, then the requested State must proceed with the surrender (article 89 (2)). If, however, an admissibility ruling is pending, then the requested State may postpone execution of the request until the Court makes its determination on admissibility (article 89 (2)).
Obligations
a) States Parties must consult with the Court without delay in order to resolve any matters that arise in relation to problems with the execution of a request for surrender, including the fact that the person in the requested State is clearly not the person named in the warrant of arrest (article 97 (b)). They may not simply refuse to execute the request for surrender.
b) States Parties should allow a per
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