Search Legislation

International Criminal Court Act 2001

Part 2: Arrest and Delivery of Persons

13.This Part, which has UK-wide extent, puts in place an expedited procedure to execute requests from the ICC for the arrest and surrender of persons. The procedure is broadly based on that already in place for arrest and surrender to the two ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda (“the International Criminal Tribunals”) and is different from that used for extradition to other countries.

Section 2: Request for arrest and surrender

14.This section sets out the procedure to be followed when the Government receives a request from the ICC for the arrest and surrender of an individual. This could be someone suspected of having committed an ICC crime or someone who has already been convicted by the ICC but has escaped custody in another country.

15.Subsection (1) requires the Secretary of State to transmit the request and the accompanying documents to an appropriate judicial officer (as defined in section 26). Subsection (3) requires the judicial officer to endorse an arrest warrant provided he is satisfied that it appears to have been issued by the ICC. Under Article 91.3 of the Statute, an ICC request for the arrest and surrender of a person already convicted may or may not contain an arrest warrant. If a request is received without an arrest warrant but is accompanied by the other documents specified in Article 91.3, subsection (4) requires the judicial officer to issue an arrest warrant himself.

16.An arrest warrant endorsed or issued under this section is termed “a section 2 warrant” and may be executed in any part of the UK (see section 14).

Section 3: Request for provisional arrest

17.Under Article 92 of the Statute, the ICC may, in urgent cases, request a State Party to make the provisional arrest of an individual before sending the formal request for surrender. This section provides that, where the UK receives such a request, an application shall be made to an appropriate judicial officer who is required to issue a “provisional warrant”.

18.Under subsection (2), where the Secretary of State considers the application for a provisional arrest warrant should be made in England and Wales, he will direct a constable to make the application. Under subsection (3), where the Secretary of State considers the application for a provisional arrest warrant should be made in Scotland, he will transmit the request to the Scottish Ministers and the procurator fiscal will make the application.

Section 4: Dealing with person arrested under provisional warrant

19.This section sets out what is to happen if a person is arrested under a provisional warrant; it reflects Article 92 of the Statute. The person must be brought as soon as is practicable before a competent court (defined in section 26 as a court consisting of an appropriate judicial officer). The court is required to remand him until such time as a section 2 warrant is produced. If such a warrant is produced, the court will proceed as if the person concerned had been arrested under that warrant. If not, the person will be discharged; however, he can be subsequently re-arrested under a section 2 warrant in accordance with Article 92.4.

20.Article 92.3 of the Statute does not specify the maximum length of time a person who has been provisionally arrested can be detained pending receipt of the ICC’s request for surrender; it instead provides for this to be specified in the ICC’s Rules of Procedure and Evidence. The Rules have been drafted by the Preparatory Commission for the ICC and this time limit has been provisionally set, in Rule 188, at 60 days. However, the Rules, like various other subsidiary documents to the ICC Statute, will not be finally adopted until the first meeting of the Assembly of States Parties, which will not take place until 60 States have ratified the Statute. It therefore remains possible that the provision in Rule 188 might change. For this reason, subsection (4) requires the period of remand to be specified in the Order in Council which may be made, under Schedule 1, paragraph 3, to give effect to the Rules of Procedure and Evidence.

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.

Section 6: Supplementary provisions as to proceedings before competent court

26.Subsection (2) enables a competent court in England and Wales hearing proceedings under section 5 to exercise certain powers relating to the conduct of the proceedings, including to adjourn the case and remand the arrested person. It provides for criminal advice and assistance, and representation under the Criminal Defence Service to be extended to the arrested person during the delivery proceedings and, in the event of a discharge, for the arrested person’s costs to be paid out of central funds. Subsection (3) makes similar provision with regard to proceedings under section 5 in Scotland. (With respect to proceedings before the ICC, an accused is entitled under Articles 55 and 67 of the Statute to legal assistance from the ICC, including assistance free of charge if he lacks sufficient means to pay for it.)

Section 7: Consent to surrender

27.This section provides that where an arrested person gives written consent to surrender in the presence of a justice of the peace or, in Scotland, a sheriff, the competent court will make a delivery order and the person will be taken to have waived his rights to appeal against that order. This reflects the provision in Article 92.3 of the Statute.

Section 8: Procedure where court refuses order

28.This section provides that if the competent court refuses to make a delivery order it must remand the person arrested and notify the Secretary of State (and, in Scotland, the Scottish Ministers). If the court is not informed without delay of an intention to appeal, the person concerned will be discharged. Otherwise, the person will remain on remand.

Sections 9 and 10: Appeal against refusal of delivery order

29.Section 9 provides that, where the competent court in England and Wales refuses to make a delivery order, the Secretary of State may appeal against the refusal, on grounds of fact or law, to the High Court and then, with permission, to the House of Lords. If either the High Court or the House of Lords grants the appeal, it can make the delivery order or send the case back to the original court to do so. The person will remain on remand until the end of the appeal process. Section 10 makes corresponding provision for Scotland.

Section 11-12: Proceedings where court makes delivery order

30.Sections 11 and 12 set out the procedure to be followed when a competent court makes a delivery order and protects the right of the person to seek a review of that order by means of an application for habeas corpus (or, in Scotland, a presentation of a Bill of Suspension). The court must notify the person of his right to seek a review of the order. It must also commit the person to custody or on bail to await the Secretary of State’s directions as to how the order is to be executed and the practical arrangements for the transfer to the ICC or the State of enforcement. To allow the person time to consider seeking a review, the directions shall not be made for 15 days from the date of the order, unless the person waives his right to seek a review (see section 13) or has already consented to surrender (see section 7). If he does make an application for habeas corpus, directions for the execution of the order are not to be made until proceedings on that application have been completed.

31.Subsection (4) of section 12 provides that the court hearing the application for review shall consider the same issues as the court which made the delivery order; subsections (2) and (4) to (9) of section 5 shall again apply (see paragraphs 22-25 above).

Section 13: Waiver of right to review

32.This section permits a person to waive his right to seek a review of a delivery order. Waiver must be made in writing and in the presence of a justice of the peace or, in Scotland, a sheriff.

Section 14: Effect of warrant of arrest

33.This section provides for the execution in any part of the UK of any arrest warrant endorsed or issued under this Part and for the legal custody of a person so arrested. The arrest warrant can be executed by any constable or any other person to whom it is directed (for example, an immigration officer).

Section 15: Effect of delivery order

34.The purpose of this section is to enable the execution of a delivery order. It provides that someone subject to a delivery order can be lawfully kept in custody pending or during the execution of the delivery order, whether in the UK or on board a British vessel or aircraft.

35.Subsection (3) grants the powers of a constable to a person authorised to carry out custodial duties in respect of a delivery order (such as the person designated to escort the person to the ICC or the State of enforcement) and provides for equivalent authority, protection and privileges.

36.Subsection (4) enables the arrest, without warrant, of someone subject to a delivery order who escapes. If, for example, someone escapes during transit to the ICC, a constable (including someone granted custodial powers undersubsection (3)) has the authority to arrest the fugitive, keep him in custody and convey him into the custody of the ICC.

37.The reference insubsection (5)(b) is to persons such as transport police whose powers are limited to specific places.

Sections 16 to 18: Bail and custody

38.Article 59 of the ICC Statute deals with the question of interim release pending surrender (i.e. bail). The Article provides that a person arrested at the request of the ICC has the right to apply for bail. It requires that the Pre-Trial Chamber of the ICC be notified of any application for bail and that the authority deciding the application give full consideration to any recommendations made by the Pre-Trial Chamber, including any on measures to prevent the escape of the person, before making its decision. Article 59.4 further requires that the authority consider whether, given the gravity of the alleged crime, there are urgent and exceptional circumstances to justify bail and whether necessary safeguards exist to ensure that the State can fulfil its duty to surrender the person to the ICC.

39.Sections 16 and 18 are intended to implement these provisions of Article 59. Section 16 provides that a court may grant bail if an application is made. Section 18(1) and (2) provide for compulsory consultation with the ICC. Section 18(3) requires the court to consider the matters specified in Article 59.4. Section 16(2) applies the provisions of the Bail Act 1976 to proceedings under this part in England and Wales as if they were proceedings against a fugitive offender. This ensures that, in view of the very serious nature of the crimes involved, the court is obliged to take into account all of the relevant factors surrounding the bail application with no presumption in favour of, or against, granting bail.

40.Section 17 covers various eventualities where a person has been granted bail in England and Wales. Subsections (3) to (5) deal with a situation in which a person, having been granted bail, surrenders to the custody of a constable shortly before the end of the period of remand. If the constable learns that the end of that period will be unexpectedly delayed, he will re-bail the person and set a new date for the person to surrender to custody. If the person fails to surrender at the appointed time, then the court which originally granted bail may issue an arrest warrant and, once the person is arrested, will reconsider whether bail is appropriate.

Sections 19 and 20: Discharge of persons

41.Sections 19 and 20 provide for two different situations in which a person arrested under this Part may be discharged. Section 19 grants a person subject to a delivery order the right to make an application for discharge if he has not been delivered up within 40 days of the order being made. The High Court, or High Court of Justiciary in Scotland, is required to order discharge if reasonable cause is not shown for the delay; this is to ensure that the right not to be subject to unnecessarily prolonged detention is respected. Section 20 provides that a person must be discharged if the ICC informs the Secretary of State that the person’s surrender is no longer required.

Section 21: Request for transit

42.It is possible that a prisoner being surrendered to the ICC by another State might need to transit the UK. To address this sort of situation, Article 89.3(a) obliges States Parties to authorise transport through their territory of a person being surrendered to the ICC by another State (except where such transit would impede or delay the surrender). Article 89.3(b) sets out what such an ICC request for transit must contain, including the warrant for arrest and surrender, and Article 89.3(c) requires the person being surrendered to be detained in custody during the period of transit.

43.Section 21 is intended to implement the obligations under Article 89.3(a)-(c). It provides that, if the Secretary of State receives and agrees to a request for transit, the request will be treated as if it were an ordinary ICC request for arrest and surrender but, in view of the different circumstances, there will be an expedited process for transferring the person in question to the ICC. The person will be treated on arrival as if he had been arrested under an endorsed warrant, will not be granted bail, and, once the competent court has made a delivery order, he will be given only two days in which to make an application for review before the Secretary of State may issue directions for the person’s delivery.

Section 22: Unscheduled landing by person in transit

44.It is possible that a person being surrendered to the ICC by another State might need to make an unscheduled landing in the UK. In the case of an unscheduled landing, Article 89.3(e) obliges a State to detain the person being transported until the request for transit is received from the ICC. The request for transit must be received within 96 hours: if not, the individual must be released.

45.Section 22 is intended to implement the obligations under Article 89.3(e). The section provides that, in such a case, the person being surrendered shall be arrested, brought before a competent court as soon as is practicable, and remanded in custody pending receipt of the ICC request. If no request for transit is received by the Secretary of State within 96 hours of the unscheduled landing, the person must be discharged. If a request is received from the ICC and the Secretary of State notifies the court that he has agreed to it, the person is to be treated as if a person in transit under section 21.

Section 23: Provisions as to State or diplomatic immunity

46.Article 27 states that the Statute shall apply equally to all persons without any distinction based on official capacity and that immunities attaching to the official capacity of a person, whether under national or international law, shall not bar the ICC from exercising its jurisdiction over such a person. Article 98.1 provides that the ICC may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the ICC can first obtain that third State’s co-operation for the waiver of the immunity. These Articles mean that a State Party to the ICC Statute, in accepting Article 27, has already agreed that the immunity of its representatives, officials or agents, including its Head of State, will not prevent the trial of such persons before the ICC, nor their arrest and surrender to the ICC. But non-States Parties have not accepted this provision and so the immunity of their representatives would remain intact unless an express waiver were given by the non-State Party concerned to the ICC.

47.Subsection (1) of section 23 therefore provides that any state or diplomatic immunity attaching to a person by reason of his connection to a State Party will not prevent his arrest and surrender under this Act if requested by the ICC. This may include a serving Head of State or Ambassador. As for persons with immunity as a result of their connection to a non-Party, subsection (2) provides that a waiver obtained by the ICC in relation to a request for that person’s surrender, will be treated as extending to proceedings for his arrest and surrender under this Act.

48.Subsection (4) provides that the Secretary of State may direct that proceedings for arrest and delivery shall not be taken against a person who has State or diplomatic immunities which, but for subsections (1) or (2), would have prevented such proceedings. The Secretary of State can do so only after consulting with the ICC and the State concerned.

49.If the United Nations Security Council, acting under Chapter VII of the UN Charter, refers a situation to the ICC for investigation and prosecution, the Security Council resolution might, depending on its wording, override any immunities attaching to representatives of all States, including non-Parties. Subsection (5) is intended to enable such a resolution to be implemented in this country.

Section 24: Delivery up of persons subject to criminal proceedings etc.

50.This section introduces Schedule 2 which applies where the ICC makes a request for arrest and surrender of a person who is also subject to domestic criminal, extradition or delivery proceedings, or is a prisoner. (Notes on Schedule 2 can be found at paragraphs 132-139 below.)

Section 25: Documents having effect as warrants etc.

51.This section provides that a copy or a faxed version of a warrant or other document shall be treated as if it were the original and shall be admissible in evidence.

52.Under Article 58.6, the ICC Prosecutor may ask the Pre-Trial Chamber to amend a warrant of arrest by modifying or adding to the crimes specified in it. Subsection (3) provides that the amended warrant shall be treated as if it were a new warrant, but notes that this does not affect the validity of anything done on the basis of the previous warrant.

Section 26: Meaning of “appropriate judicial officer” and “competent court”

53.This section defines “competent court” as a court consisting of the Senior District Judge (Chief Magistrate) or a designated District Judge (Magistrates’ Courts), or the Sheriff of Lothian and Borders.

Back to top


Print Options


Explanatory Notes

Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.


More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources