Amnesty Part III: Ne Bis in Idem in International Criminal Law

In my previous post in this series I discussed some general points on amnesties and pardons, and examined the validity of domestic amnesties for jus cogens crimes with reference to some international examples of this issue in practice.

In this post I will examine the principle of ne bis in idem, or, as it is known in common law systems, double jeopardy.1“The Right to be Protected from Double Jeopardy. This right is designed to prevent the state from repeatedly subjecting a person to prosecution for offenses arising out of the same event until the desired results are achieved. It derives from a sense of fairness, and can be analogized to the civil law concept of res judicata. The non-common law countries refer to it as non bis in idem.” M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 288 (1993). This principle prevents prosecution by a subsequent court of an individual for the same offense (and sometimes the same conduct, facts or cause of action) for which that individual was already finally convicted or acquitted. In the United States (“US”), it is enshrined in the Fifth Amendment to the US Constitution, which states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

To start with, I will set out some general characteristics, underlying rationale, and exceptions to this principle. I will then discuss the question of whether the ne bis in idem principle has transnational application. I will conclude with a checklist to consider when determining the applicability of the ne bis in idem principle to bar prosecution.

The general ne bis in idem / double jeopardy principle

nebisThe ne bis in idem principle is known under a variety of different formulations such as the res judicata rule, autrefois acquit / autrefois convict, and the protection against double jeopardy.2See Christine Van den Wyngaert & Tom Ongena, Ne bis in idem Principle, Including the Issue of Amnesty, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 705, at 706 (Antonio Cassese, Paola Gaeta, John R. W. D. Jones, eds., 2010). Ne bis in idem is a fundamental principle of human rights law and has been recognized by a multitude of international instruments.3See e.g., International Covenant on Civil and Political Rights, Art. 14(7); European Convention for Human Rights, Art. 4, Protocol 7; ICTY Statute, Art. 10; ICTR Statute Art. 9.

Ne bis in idem is not related to amnesty. Its purpose is to protect the accused from the harassment of the State and to ensure legal certainty. It is intended to spare an individual from undergoing the psychological, emotional, physical and monetary stress associated with a criminal prosecution twice. As the US Supreme Court explained:

The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.4Green v. United States, 355 U.S. 184 (1957).

This purpose does not only apply when an accused has been acquitted. The anxiety and stress caused by repeated prosecutions affects families, witnesses, and even victims and is likely to be exacerbated by media attention.5YASMIN Q. NAQVI, IMPEDIMENTS TO EXERCISING JURISDICTION OVER INTERNATIONAL CRIMES 307 (T.M.C. Asser Press 2010).

Ne bis in idem is also a corollary of the recognition of the res judicata effect of judgments. “Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”6Allen v. McCurry, 449 U.S. 90, 94 (1980), citing Cromwell v. County of Sac, 94 U.S. 351, 352 (1877). Res judicata has three basic elements: “(1) an earlier decision on the issue, (2) a final judgement on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties.”7Restatement (Second) of Judgments §§ 17, 24 (1982). As such, the ne bis in idem principle is aimed at protecting the finality of judgments and thus upholding public confidence in the justice system and respect for judicial proceedings. “The idea is that once a case has been dealt with, it should not be reopened (factum praeteritum) as this would seriously undermine respect for judicial proceedings and the judiciary in general.”8Naqvi, supra n. 5, at 307-08. This has been termed the “procedural effect” of the ne bis in idem principle.9Id., at 292-93. As noted by Dutch legal scholars André Klip and Harmen van der Wilt, “[t]he rule of law requires that if the state has initiated prosecution versus one of its citizens that it will respect the outcome of the proceedings. Decisions of the court should therefore be respected. If res judicata would not be final, this would undermine the legitimacy of the state.”10André Klip & Harmen van der Wilt, The Netherlands Non Bis in Idem, 73 REVUE INTERNATIONALE DE DROIT Penal 1091, 1094 (2002).

Article 14(7) of the International Covenant on Civil and Political Rights (“ICCPR”) provides: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” The Human Rights Committee (“HRC”) has elaborated on how this principle applies in practice. With regard to a conviction following a trial in absentia, Article 14(7) does not prohibit a retrial if it is at the request of the convicted person, but it will apply to the second conviction.11UN Human Rights Committee, General Comment no. 32, Article 14, Right to Equality Before Courts and Tribunals and to Fair Trial, CCPR/C/GC/32, 23 August 2007, para. 54. Article 14(7) will not apply if a conviction is quashed by a higher court and a retrial is ordered, nor does it prohibit the reopening of a trial based on exceptional circumstances, such as the discovery of new evidence.12Id., para. 56.

Article 14(7) of the ICCPR is unusual amongst other international ne bis in idem provisions. Article 14(7) limits protection to situations where an accused was charged with the same offense, whereas most other international instruments refer to the same acts or conduct.13See e.g., ICC Statute, Art. 20(1): “Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court”; ICTY Statute, Art. 10(1): “No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal”; ICTR Statute, Art. 9(1): “No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal for Rwanda.” The specific ne bis in idem provision in the Rome Statute is pertinent in this context. While Article 20(1) protects against re-prosecution by the ICC for “conduct” forming the basis of crimes for which someone has already been acquitted or convicted by the ICC, when it comes to other courts Article 20(2) only protects against re-prosecution for “a crime referred to in Article 5 [crimes within the jurisdiction of the court] for which that person has already been convicted or acquitted” by the ICC. The interpretation of Article 20(2) by the ICC and its broader implications for the ne bis in idem principle and complementarity will be discussed in more detail below.

The Pre-Trial Chamber of the ECCC previously noted what it called the limited scope of Article 14(7) “as it applies to the same ‘offence’, namely the same legal characterization of the acts, while the international protection focuses on the ‘conduct’ of the accused, thus taking into account for the application of the ne bis in idem principle the fact that international proceedings might trigger legal characterisation that differ from the domestic ones.”14Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ(PTC 75), Decision on IENG Sary’s Appeal Against the Closing Order, 11 April 2011, D427/1/30, para. 130.

Exceptions to the ne bis in idem principle

Although the ICCPR does not specify exceptions to the ne bis in idem principle, other instruments have recognized that certain exceptions are necessary. For example, Article 20(3) of the Rome Statute states:

No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

The Rome Statute did not include the so-called “ordinary crime exception,” which was contained in the Statutes of the ad hoc tribunals. According to Article 10(2)(a) of the ICTY Statute, Article 9(2)(a) of the ICTR Statute, and Article 9(2)(a) of the SCSL Statute, if someone is tried by a national court for “acts constituting serious violations of international humanitarian law,” a subsequent prosecution by the international court or tribunal will be barred unless “the act for which he or she was tried was characterized as an ordinary crime.” The “ordinary crime exception” was not explicitly reproduced in the Rome Statute as the drafters considered that it could create confusion and was too vague, but the wording of Article 20(3) leaves it open to interpretation and a number of scholars consider this to mean that the exception was not abandoned entirely.15Van den Wyngaert & Ongena, supra n. 2, at 725-26; MOHAMED M. EL ZEIDY, THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW: ORIGIN, DEVELOPMENT AND PRACTICE 290 (Brill 2008). This issue reinforces the significance of the characterization of crimes on a national level.

With regard to the exception to the ne bis in idem principle where a previous trial was not conducted independently or impartially, the ECCC has observed some examples in the jurisprudence of the Inter-American Court of Human Rights (“IACtHR”).16Decision on IENG Sary’s Appeal Against the Closing Order, supra n. 14, para. 153, citing IACtHR, Carpio-Nicolle et al. v. Guatemala, Judgement (Merits, Reparations and Costs), 22 November 2004, para. 131. The ECCC noted the IACtHR’s view that this exception to ne bis in idem is necessary to ensure States fulfill their human rights obligations.17Decision on IENG Sary’s Appeal Against the Closing Order, supra n. 14, para. 154. The IACtHR considered that a proceeding which fails to comply with the standards of the American Convention on Human Rights will not exempt a State from its obligations, and a judgment from such a proceeding has no legal effect for the purpose of the application of the ne bis in idem principle.18Id., para. 155, citing IACtHR, Carpio-Nicolle et al. v. Guatemala, Judgement (Merits, Reparations and Costs), 22 November 2004, para. 132; IACtHR, Gutiérrez-Soler v. Colombia, Judgement (Merits, Reparations and Costs), 12 September 2005, para. 98; IACtHR, Almonacid-Arellan et al v. Chile, Judgement (Preliminary Objections, Merits, Reparations and Costs), 26 September 2006, para. 154.

The issue of ne bis in idem and its exceptions surfaced at the ECCC because one of the accused, Ieng Sary, had been previously tried and convicted in absentia in a 1979 trial for at least some of the same crimes he was later charged with at the ECCC.19See Judgement of the Revolutionary People’s Revolutionary Court, U.N. A/34/491, 19 August 1979; Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ, Closing Order, 15 September 2010, D427. Ieng Sary’s 1979 trial was widely regarded as lacking in respect for fair trial rights and due process.

More serious criticisms of the People’s Revolutionary Tribunal are those that pertain not to the procedures followed, but to the trial’s character and foregone conclusions and its scripted nature. The detailed timetable for the proceedings that had been issued five days in advance of the tribunal indicated that the length, course and the outcome of the process had been predetermined. The witness statements (many of which used derogatory jargon) were composed in similar if not identical wording. Above all, the pathetic main line of the defence has to be condemned. The defence lawyers tamely accepted all the crimes of which the accused were charged and made virtually no cross-examination of witnesses, even though this right was specifically enumerated beforehand. The defence should have been as good as possible and still resulted in a conviction.20See TOM FAWTHROP & HELEN JARVIS, GETTING AWAY WITH GENOCIDE? ELUSIVE JUSTICE AND THE KHMER ROUGE TRIBUNAL 47-48 (Pluto Press 2004).

Shockingly, one of the assigned lawyers for Pol Pot and Ieng Sary, Hope Stevens, denounced his own clients: “I have not come from halfway around the world to give approval to a monstrous crime nor to ask for mercy for the criminals…. No! A thousand times no!”21Thet Sambath, IENG Sary Is Ready for KR Trial: Family, PHNOM PENH POST, 27 September 2007, available at https://www.cambodiadaily.com/archives/ieng-sary-is-ready-for-kr-trial-family-61488/. See also GENOCIDE IN CAMBODIA: DOCUMENTS FROM THE TRIAL OF POL POT AND IENG SARY 507 (Howard J. De Nike, John B. Quigley, Kenneth J. Robinson eds., University of Pennsylvania Press 2000): “It is now clear to all that Pol Pot and Ieng Sary are monstrous, mad criminals who have carried out a programme drawn up for them by people elsewhere. Consequently … you have to try not only Pol Pot and Ieng Sary and their agents and subordinates….” Another of their lawyers, Yuos Por, proclaimed: “We recognize that Pol Pot and Ieng Sary were the perpetrators of their criminal acts,… they must, as a consequence, assume full responsibility.”22GENOCIDE IN CAMBODIA, supra n. 21, at 510.

When Ieng Sary was charged and sent to trial at the ECCC, I, along with my Co-Lawyer, Ang Udom, argued that the 1979 proceedings were not held with the purpose of shielding Ieng Sary, since he was convicted and sentenced to death, so the first exception to the ne bis in idem principle would not apply. In my own words:

So was the 1979 trial a proper trial, at least based on the legal framework upon which it was existed? Would anybody among us in this courtroom want to be tried in that fashion? I think the answer to that question is resoundingly “no”. Was it perfect? No. Did it follow the procedure that was set at the time? Yes. More importantly, I think this is the issue that needs to be addressed and, I respectfully submit has not been raised before, is if Mr. Ieng Sary had been detained and incarcerated, would he have been given the death sentence; would he have been executed? And the answer to that is “yes”, and that’s the proof in the pudding as to whether that judgement would have been considered proper and final. The prosecution nor the Pre-Trial Chamber nor the United Nations before Mr. Ieng Sary had appeared to after the issuance of the judgement, none of them came out and said that that trial was a sham trial and that the sentence itself could not and would not be carried out if Mr. Ieng Sary had been detained up until the time he was granted the Royal Decree pardon and amnesty.23Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Transcript of Initial Hearing, 27 June 2011, E1/4.1, p 51.

The Pre-Trial Chamber, and later the Trial Chamber, unsurprisingly, concluded that the 1979 trial was not conducted impartially in accordance with the norms of due process recognized by international law, so the second exception to the principle applied and Ieng Sary’s prosecution was not barred by the ne bis in idem principle.24Decision on IENG Sary’s Appeal Against the Closing Order, supra n. 14, paras. 161-75; Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Decision on IENG Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), 3 November 2011, E51/15, para. 30. And let’s face it, it’s hard to claim that an assigned lawyer who is calling for his client’s conviction and a death sentence has zealously represented his client.

Transnational Application

There is debate about whether and to what extent the ne bis in idem principle has transnational application, i.e. whether it would bar a State or an international tribunal from prosecuting a person who had previously been convicted or acquitted in a different State’s domestic proceeding.

Generally, the ne bis in idem principle is not considered to apply across domestic jurisdictions; the fact that one State has convicted or acquitted a person will not prevent a different State from prosecuting that person for the same crime – although there are opposing views.25See in particular the sources cited in note 7 of Dionysios Spinellis, Global Report the Ne Bis In Idem Principle in “Global” Instruments, 73 REVUE INTERNATIONALE DE DROIT PÉNAL 1149 (2002-2003), available at https://www.cairn.info/revue-internationale-de-droit-penal-2002-3-page-1149.htm#no8. The HRC has consistently held that Article 14(7) of the ICCPR “does not guarantee ne his in idem with respect to the national jurisdictions of two or more states – this provision only prohibits double jeopardy with regard to an offence adjudicated in a given State.”26For example, see UN Human Rights Committee, A.P. v. Italy, Communication No. 204/1986, CCPR/C/31/D/204/1986, para. 7.3: “this provision prohibits double jeopardy only with regard to an offence adjudicated in a given State.”

At the ECCC, the Pre-Trial Chamber (considering inter alia the HRC decisions on this matter) found that the ne bis in idem principle as set out in the ICCPR does not have transnational application, but “solely a domestic effect.”27Decision on IENG Sary’s Appeal Against the Closing Order, supra n. 14, para. 128. The Trial Chamber reached the same conclusion.28Decision on IENG Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), supra n. 24, para. 32. The Pre-Trial and Trial Chambers considered, however, that procedural rules established at the international level (which the Chambers must consider in accordance with the law governing the ECCC) provide for ne bis in idem protection. Therefore, they considered whether the ne bis in idem principle would bar prosecution even though the principle could not be applied through the ICCPR.29Decision on IENG Sary’s Appeal Against the Closing Order, supra n. 14, paras. 122-24, 132-60; Decision on IENG Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), supra n. 24, paras. 27, 32-36. Similarly, at the ICTY, the Tadić Trial Chamber noted that Article 14(7) of the ICCPR “is generally applied so as to cover only a double prosecution within the same State, and has not received broad recognition as a mandatory norm of transnational application.”30Prosecutor v. Tadić, IT-94-1-T, Decision on the Defence Motion on the Principle of Non-Bis-In-Idem, 14 November 1995, para. 19.

Article 4(1) of Protocol 7 to the European Convention on Human Rights (“ECHR”) explicitly states that “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”31Emphasis added. Despite the language of Protocol 7, however, there is an exception to this for States who are parties to the Schengen Agreement, since Articles 54 to 58 of this Agreement prohibit, with certain exceptions, prosecution by one State party if there has already been a trial for the same acts by another State party.32Convention Implementing the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at Their Common Borders, 19 June 1990, Arts. 54-58. Furthermore, in Europe:

The classical inter-State cooperation in criminal matters has been replaced by enhanced judicial cooperation directly between the actors of the criminal justice system. Moreover, these now have to recognize each other’s judicial decisions based on the principle of mutual recognition. As a result, essential aspects of the functioning of the criminal justice system are now taking place in a European area without internal borders, a transnational judicial area. By several framework decisions the mutual recognition principle has been elaborated for pre-trial judicial decisions, such as seizure, evidence gathering and arrest. Judicial decisions in one Member State have legal effect in the legal area of the EU. The most famous framework decision in this context must certainly be the European Arrest Warrant which replaces the classic extradition procedure. Mutual recognition of each other’s arrest warrants not only leads to the quicker surrender of suspects within the EU, but also to the fact that legal principles such as the ne bis in idem principle have to be applied transnationally.33John A.E. Vervaele, The Transnational Ne Bis in Idem Principle in the EU Mutual Recognition and Equivalent Protection of Human Rights, 1(2) UTRECHT L. REV. 100, 101 (2005).

Despite the trend in Europe toward recognizing a transational application of the ne bis in idem principle, lack of transnational application across domestic States has been identified as a “serious lacuna in international human rights protection,” particularly since States are being encouraged or even obliged to introduce universal jurisdiction for international crimes. It stands to reason that the individual should be given protection commensurate to this expansion in jurisdiction.34Van den Wyngaert & Ongena, supra n. 2, at 717. Perhaps for this reason, the International Congress of Penal Law35The International Association of Penal Law was founded in Paris in 1924. It is the successor of the International Union of Penal Law which had been founded in 1889 in Vienna. It is the oldest association of specialists in penal law and one of the oldest scientific associations in the world. See International Association of Penal Law website, available at http://www.penal.org/?page=mainaidp&id_rubrique=13&lang=fr. has adopted a resolution stating: “[t]he principle of ne bis in idem should be regarded as a human right that is also applicable on the international or transnational level.”36Resolution Section IV B.4 adopted by the XVIth International Congress of Penal Law, available at http://www.penal.org/sites/default/files/files/RICPL.pdf.

The application (or non-application) of the ne bis in idem principle across States has been referred to as “horizontal” application.37See, e.g., Van den Wyngaert & Ongena, supra n. 2, at 708; Dionysios Spinellis, supra n. 25. When it comes to international criminal tribunals, application of the principle is sometimes thought of in a “vertical” manner; the international criminal tribunals are considered to be hierarchically superior to domestic courts, and therefore their decisions have priority over those rendered in national courts.38Van den Wyngaert & Ongena, supra n. 2, at 709. If, for example, the ICTY has already prosecuted a person for a certain crime, a national jurisdiction may not prosecute that person for the same crime, while the reverse might not necessarily be true. As discussed above, the ICTY might still choose to exercise its jurisdiction where the domestic proceedings only characterized the act as an ordinary crime, or where they were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.39ICTY Statute, Art. 10(2).

When it comes to the ICC, according to Judge Christine Van den Wyngaert and Tom Ongena, the relationship between the ICC and the national jurisdiction should not be thought of in a “horizontal” or “vertical” manner:

While the idea of ‘verticality’ may be a good approach to provide an understanding of the relationship between judgments of international tribunals and judgments of national tribunals in the case of the Nuremberg and Tokyo Tribunals and of the current ad hoc Tribunals (the ICTY and ICTR), this approach is somewhat misleading when dealing with the ICC as established by the Rome Statute. Unlike Nuremberg and the ICTY and ICTR, the jurisdiction of the permanent ICC will be only complementary to the jurisdiction of national courts and the permanent ICC will have no priority over national proceedings (whether pending or terminated in the form of a final judgment).40Van den Wyngaert & Ongena supra n. 2.

I will discuss this issue of complementarity in more detail in my final post in this series. For now, let’s turn to a discussion of the ICC. Article 20 of the Rome Statute explicitly provides that the ne bis in idem principle applies at the ICC (with certain exceptions). It states:

1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.

3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.41Emphasis added.

The interpretation of Article 20 has significant implications for the principle of complementarity between the ICC and the States, as well as the obvious impact on the rights of individuals before the Court. A number of recent decisions from the ICC provide an indication of how the law on this issue might develop.

The application of Article 20 was briefly discussed by the Trial Chamber in its decision vacating the charges in the Ruto and Sang case. In determining the consequences of finding no case to answer, Judge Fremr noted that the “overly strict wording of Article 20” is “no longer in line with the contemporary criminal laws of numerous national jurisdictions,” and leaves open the possibility to re-prosecute the case if new evidence is discovered in the future.42Prosecutor v. Ruto & Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, Reasons of Judge Fremr, 5 April 2016, para. 148. Judge Eboe-Osuji somewhat similarly observed that vacating the case without prejudice preserves the presumption of innocence but that the decision does not automatically engage the ne bis in idem principle, so that if future proceedings are brought the circumstances must be reviewed to determine if it violates the ne bis in idem principle.43Prosecutor v. Ruto & Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, Reasons of Judge Eboe-Osuji, 5 April 2016, para. 188. This decision is consistent with Article 14(7) of the ICCPR, discussed above.

Article 20 was also considered by the Presidency of the ICC in the context of Article 108(1), limiting the further prosecution or punishment of other offenses in the Katanga case in April this year.44Prosecutor v. Katanga, ICC-01/04-01/07, Decision Pursuant to Article 108(1) of the Rome Statute, 7 April 2016. This decision related to a request from the Democratic Republic of Congo (“DRC”) to the Presidency to approve the prosecution of Katanga pursuant to Article 108(1) of the ICC Statute, which prohibits prosecution or punishment of a sentenced person for prior offenses.45Decision Pursuant to Article 108(1) of the Rome Statute, supra n. 42, paras. 1-15. Katanga submitted that the wording of Article 108(1) referring to “conduct” had a broader meaning that the wording of Article 20(2), which refers to a “crime.”46Prosecutor v. Katanga, ICC-01/04-01/07, Further Observations Following the Defence Mission to Kinshasa, 26 February 2016, para. 18. The Presidency determined that it could not broaden the scope of Article 20(2), noting that it does not prohibit subsequent trials for conduct which falls within the ambit of the ICC’s investigations.47Decision Pursuant to Article 108(1) of the Rome Statute, supra n. 42, para. 23. The Presidency concluded that Article 20(2) only prevents prosecution for the specific crimes which Katanga has been found guilty of and given the indications from the DRC that the domestic prosecution related to other crimes, the Presidency found that Article 20(2) would not be undermined by the domestic prosecution.48Id., paras. 24-25.

This decision has significant implications for the future application of the ne bis in idem principle at the ICC and for the principle of complementarity. As one writer noted, the Presidency appeared to be satisfied by the DRC’s assurances without conducting its own analysis of the domestic and does not give any detail on its standard of review for deciding when a domestic investigation is sufficiently distinct from an ICC case, which should be at the heart of a ne bis in idem challenge.49Patryk Labuda, Complementarity Compromised? The ICC Gives Congo the Green Light to Re-Try Katanga, OPINIO JURIS, available at http://opiniojuris.org/2016/04/11/complementarity-compromised-the-icc-gives-congo-the-green-light-to-re-try-katanga/. While the ICC is undoubtedly also concerned with maintaining a friendly relationship with the States in respecting domestic proceedings, this decision sets a bizarre and concerning precedent which has the potential to undermine the ne bis in idem principle.

Suggested checklist

As we can see from this brief analysis of the ne bis in idem principle, in determining its application and whether new charges can be brought or should be prevented charge, several issues should be considered. Here is a suggested checklist:

• Has there been a final judgment?

o The ne bis in idem principle only applies when there has been a final judgment. If the prior proceedings were never final, the principle will not prevent new charges from being tried.

• Are the new proceedings occurring in the same State, in a different State, or before the ICC?

o If the previous proceedings occurred in a domestic jurisdiction and the new proceedings are occurring in a different State, arguably the ne bis in idem principle will not prevent prosecution.

o If the previous proceedings occurred in a domestic jurisdiction and the new proceedings are occurring before the ICC, the ne bis in idem principle could prevent the new proceedings, as long as other conditions are met.

• Are the new charges for the same offense, or based on the same acts / conduct as the previous charges?

o If the new proceedings are for the same offense, the ne bis in idem principle could prevent prosecution, provided other conditions are met.

o If the new proceedings are based on the same acts / conduct, but the charges are different (i.e. genocide as opposed to murder), whether the ne bis in idem principle will apply may depend on where the new proceedings are being tried and on whether the charges were deliberately made less serious in the previous proceedings (see below).

• Was the previous proceeding made for the purpose of shielding the person concerned from criminal responsibility?

o If so, the ne bis in idem principle should not prevent prosecution.

• Was the previous proceeding conducted independently and impartially, in accordance with the norms of due process recognized by international law?

o If not, the ne bis in idem principle should not prevent prosecution.

• Was the prior proceeding in any other way inconsistent with an intent to bring the person concerned to justice?

o If so, the ne bis in idem principle should not prevent prosecution.


In the next and final post I will discuss the issues of amnesty and the ne bis in idem principle in relation to the case against Saif al-Islam Gaddafi before the ICC and his lawyers’ public pronouncements that the ICC should dismiss the charges because Saif al-Islam Gaddafi has been amnestied by the internationally recognized Libyan government and / or double jeopardy attaches as a result of being tried, convicted and sentenced in absentia by a court in Tripoli while he was being held in Zintan.


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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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