Two other provisions of the Rome Statute cross-reference article 92. Article 58(5), which deals with the powers of the Pre-Trial Chamber, says that ‘[o]n the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9’. According to article 59(1), ‘[a] State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9’.
References(p. 1310) The Court may only make such a request ‘[i]n urgent cases’. Provisional arrest must be followed by a formal presentation of a request for surrender, accompanied by the requisite documents.7
At the ad hoc tribunals, the request for provisional arrest may be made by the Prosecutor.8 At the International Criminal Court, it must be made by a Pre-Trial Chamber.9 In 2015, a Pre-Trial Chamber issued a very general order to the Registrar:
Noting variation in how the Court deals with such situations, and highlighting the need for harmonization, the Pre-Trial Chamber said it issued the order ‘relating to the scenario whereby the Court, or any of its organs, receives information relating to travel, whether planned or ongoing, of persons for whom a warrant of arrest, still in effect, has been issued by the Court and who are still at large’.11
When a request is made to a State in accordance with article 92, the Registrar ‘invites’ the State to inform him or her of the arrest, and ‘to provide, inter alia’, personal details and other information concerning the arrest, including a confirmation of ‘the information given to the arrested person in respect of his or her rights’.12 The purpose of the term ‘inter alia’ is not apparent, because the Regulations indicate that the State should provide, in addition to specific requirements, ‘[a]ny other useful information’.
Form and Content of Request (Art. 92(2))
Given the exceptional nature of a request for provisional arrest, the requirements in terms of the form and content are less demanding. In contrast with article 91 of the Statute, there is no need to provide ‘documents, statements or information’. Provisional arrest is governed by article 59 of the Rome Statute, which allows for interim release in ‘urgent and exceptional circumstances’.
Release from Custody and Consent to Surrender (Art. 92(3), (4))
The Court is to meet the requirements of article 91 within sixty days of a provisional arrest conducted pursuant to article 92.13 If the requested State has not received the full request for arrest and surrender within this delay, it may release the suspect, if interim release has not already been granted pursuant to article 59 of the Statute. The individual References(p. 1311) may, however, consent to surrender to the Court before the expiration of this delay, if this is authorized by the law of the State Party that has been requested to arrest and surrender the suspect. Early surrender avoids subsequent formalities,14 and is sometimes advantageous to the accused person. The relevant provision is derived from article 6 of the UN Model Treaty on Extradition.15
However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.