Introduction to the Symposium on The Principle of ne bis in idem in International Criminal Law by Gaiane Nuridzhanian

[Gaiane Nuridzhanian is an associate professor at The Arctic University of Norway (UiT)]

The legal principle of ne bis in idem, also known as double jeopardy, proclaims that no person shall be tried twice for the same matter. This principle exists in most of the domestic legal systems and is a fundamental human right. While the importance of this principle is well recognised, the meaning of specific ne bis in idem rules often raise basic yet complex questions:  What amounts to the same offence or the same conduct? When is a conviction or acquittal considered final? Will amnesty preclude future trials in the same case? Does the prohibition on repeat trial apply across multiple jurisdictions? 

My book The Principle of ne bis in idem in International Criminal Law delves into these and other questions related to the operation of ne bis in idem in the context of international criminal law. The monograph explores the status of ne bis in idem in international law, examines the content of the principle in international human rights law and discusses in detail the ne bis in idem rules in the law and practice of the International Criminal Court (ICC). As the book demonstrates, a variety of ne bis in idem rules exist in international criminal law. The precise content of these rules is shaped by their context and competing interests that the rules may need to accommodate. These interests, as regards the ICC, are the protection of an individual from the burden of repeat trial, respect for state sovereignty and the need for effective accountability for international crimes. 

The investigation into the meaning of ne bis in idem rules is particularly important now. In modern international criminal law, accountability for atrocity crimes is often pursued on multiple levels by different actors with overlapping jurisdictions to prosecute international crimes. The situation in Ukraine is a prime example. Atrocity crimes committed during the war in Ukraine are investigated in Ukraine and other foreign states as well as by the ICC. In addition, a special tribunal for the crime of aggression is being created under the auspices of a regional organisation, the Council of Europe. The multiplicity of actors involved raises questions about the division of labour between these actors and the risks of parallel prosecutions of the same crimes in multiple jurisdictions. The principle of ne bis in idem plays an important role in regulating the relationship between domestic and international criminal justice systems and protecting individuals from repeated trials. 

In this symposium, five brilliant scholars engage with various aspects of the book and discuss most contentious and topical ne bis in idem issues. Dr. Megumi Ochi from Ritsumeikan University in Japan opens the symposium with an excellent discussion of the inter-jurisdictional ne bis in idem rules in Article 20 (2) and (3) of the Rome Statute of the ICC. Dr. Iryna Marchuk, University of Copenhagen, and Dr. Aloka Wanigasuriya, University of Southern Denmark, investigate a topical issue of interaction between ne bis in idem and the principle of complementarity in the context of domestic prosecution of war crimes committed in Ukraine. Dr. Daniel R. Ruhweza of Makerere University in Uganda provides an insightful overview of challenges arising in connection with the application of ne bis in idem in the ICC cases related to the situations in Africa. Dr. Nandor Knust at UiT-The Arctic University of Norway provides thoughtful reflections on the role of ne bis in idem in the transitional justice processes. My response to these contributions concludes the symposium.   

I am most grateful to my colleagues for their excellent contributions and to Opinio Juris for hosting this book symposium on The Principle of ne bis in idem in International Criminal Law.