Commentary on Sections Part 2: Arrest and Delivery of Persons Section 5: Proceedings for delivery order
21.This section is intended to implement Article 59.2 of the Statute. Article 59.2 states that a person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) the warrant applies to that person; (b) the person has been arrested in accordance with the proper process; and (c) the person’s rights have been respected. However, nothing in the Statute allows a State to refuse to surrender a person to the ICC on the grounds that the person has not been properly arrested or his rights have not been respected. The Government interprets the Statute as meaning that it will be for the ICC to determine the consequence of any violation of a person’s rights or of proper procedure for his prosecution before the ICC. It would be open to the ICC, for example, to halt the prosecution on grounds of abuse of process or to award compensation.
22.Subsection (1) requires that the person arrested under a section 2 warrant be brought before a competent court as soon as is practicable. Subsection (2) requires the court to make a delivery order if it is satisfied that the person before it is the person named in the warrant and that the warrant is from the ICC and has been duly endorsed or that the warrant has been duly issued under section 2.
23.As provided for in Article 89.2 of the Statute, subsection (4) allows the domestic court to adjourn surrender proceedings whilst a challenge is still pending before the ICC to the admissibility of the case or to the ICC’s jurisdiction. Such a challenge could be made by the accused or by a State under Article 19 of the Statute. This subsection would apply, for example, if the person claimed that he had already been tried for the crime which the ICC wished to prosecute.
24.Article 59.4 states that it shall not be open to a domestic court to consider whether the warrant of arrest was properly issued by the ICC. Subsection (5) is intended to implement that obligation. Subsection (5) also provides that the competent court shall not consider whether there is evidence to justify the person’s trial before the ICC.
25.Subsection (6) provides that the competent court may also determine whether the person has been lawfully arrested under the warrant and whether his rights have been respected. The court must make this determination if the person arrested applies for it to do so. Subsection (6), following Article 59.2, does not seek to spell out all the rights which the court may consider. If the domestic court determines that there have been violations of proper process or of the person’s rights, subsections (8) and (9) state it shall make a declaration (or declarator in Scotland) which will be passed to the ICC. However, the competent court cannot grant any other relief and this declaration will not affect the court’s decision whether or not to issue a delivery order under subsection (2). This section does not exclude any other procedure available under domestic law for the remedy of a violation of a person’s rights.