e requesting State; then
(iv) the requested State must give priority to the request from the Court (article 90 (7)(a)).
Where all of these factors are the same, except that the requested State is under an existing international obligation to extradite the person to the requesting State, then the requested State must determine which request to fulfil. When making this decision, the State must take into account all the factors listed in article 90 (6), as well as giving special consideration to the relative nature and gravity of the conduct in question (article 90 (7)(b)).
Implementation
States Parties must ensure that they have laws or procedures to deal with all of these obligations in the manner that the Statute specifies. Any legislation or policy directive must state clearly which request the State must give priority to in each situation. The only exception to this is where the State must make the decision. In each of those cases, the legislation or policy directive must require the decision maker to consider all of the relevant factors, especially those set out in article 90 (6) & (7).
States Parties also need to ensure that they maintain communications with the Court throughout the whole process, in order to allow the Court to make an informed decision about admissibility issues, and to keep up-to-date with the progress of the Court's rulings on admissibility.
Conflicts with other international obligations
Description
International law bestows Heads of State and diplomatic officials with immunity from criminal prosecution by foreign States (Vienna Convention on Diplomatic Relations, article 31 (1)). However, the crimes listed under the Statute may be committed by diplomats, Heads of State, government officials or by any other person enjoying diplomatic immunity, and international law may not recognise any immunity from prosecution for such heinous crimes.
The ICC will determine whether any immunities exist, when a matter is referred to it. However, article 98 places certain restrictions on the Court, when it is making requests for surrender or other types of assistance from States. Article 98 (1) deals with the situation where surrendering a person would conflict with a State's obligation under international law with respect to the State or diplomatic immunity of a non-national or their property. The onus is on the ICC to ensure that it does not request a State to act inconsistently with its international obligations. Therefore, this situation will most likely never arise for a State because the Court will investigate such possibilities before making any request for surrender. In addition, the "obligations under international law" applicable to States Parties would include their obligations under the Rome Statute. By agreeing to articles 27 and 86 of the Statute, States Parties arguably have waived any immunities they may have had against the ICC. Therefore, where a national of a State Party is the subject of a request from the Court, that national may not be able to claim the normal immunities that may exist with respect to criminal prosecution by foreign States and the requested State may not be in breach of its international obligations if it surrendered that person to the ICC.
However, where the ICC has determined that an immunity does exist, it can proceed with a request to surrender only if it first obtains the co-operation of the accused's State of nationality. Then the requested State can proceed with the surrender, without breaching its international obligation with respect to the Vienna Convention on Diplomatic Relations.
Article 98 (2) provides that the Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements which require the consent of a sen
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