son sought for surrender to bring a challenge before a national court or other competent authority, if the ICC is seeking the person in connection with conduct that has already formed the basis of a prosecution for genocide, crimes against humanity, or war crimes (articles 20 (3) & 89 (2)). However, the national court or authority may not determine the issue of whether the case is admissible before the ICC. Only the ICC can make that determination.
c) If a person sought for surrender brings a challenge before a national court or other authority on the basis of the principle of ne bis in idem, the requested State must consult immediately with the Court to determine if there has been a relevant ruling on admissibility (article 89 (2)).
d) The requested State must proceed to execute the request for surrender, if the Court has ruled already that the case is admissible (article 89 (2)).
e) If an admissibility ruling is pending, the requested State may postpone the execution of the request until the Court makes a determination on admissibility (article 89 (2)).
Implementation
a) States Parties should ensure that they have procedures in place to allow rapid and efficient communication with the Court, in the event that there is a problem in executing a request for surrender, including inability to locate the requested person (article 97(b)).
b) States Parties should also establish procedures and introduce legislation, if they have not already, to ensure that persons sought by the ICC for surrender may have some form of redress at the national level, where the proper process under national laws was not followed, or the person's rights under national law were not respected when they were being arrested (article 59 (2)(b) & (c)).
c) A procedure should be established for situations where a person sought for surrender makes a challenge before a national court or other competent authority on the basis of "ne bis in idem" (article 89 (2)). The introduction of such a procedure will necessitate diligent keeping of records of previous trials, and possibly access to the records of other States, so that the national court may check whether there is any basis for the person's claim, before referring the matter to the ICC.
d) A procedure should also be established for bringing all such claims to the attention of the ICC and for consulting with the ICC as to any rulings it has made on the issue (article 89(2)).
e) Once it is apparent that the ICC has already ruled the case admissible, the State must organise to surrender the person as quickly as possible (article 59 (7)).
f) If there is an admissibility ruling pending, States need to consider whether they wish to continue with the surrender or not. They may if they wish, in which case, once the decision is made to surrender, the person should be brought before the Court as soon as possible (article 59 (7)). If States decide to postpone the surrender, it would be extremely prudent for them to have legislation and procedures that allow the relevant authorities to keep the person in temporary custody, or to restrict their liberty in some other way, until the Court rules on the admissibility issue. Otherwise the person may take flight.
Competing requests
Description
Article 90 outlines the procedure to be followed where a State Party receives requests from both the ICC and another State, for the surrender of the same person for the same conduct. In general terms, States Parties are required to notify the various parties and give priority to requests from the ICC, where the Court has made a determination that the case is admissible and the requesting State is a State Party (article 90 (2)). If the Court is still considering the issue of admissibility, then it must expedite its determination (article 90 (3)). If the State h
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