Symposium on The Principle of ne bis in idem in International Criminal Law: ne bis in idem in the Age of Accountability for Atrocity Crimes – Lessons from Ukraine

[Dr Iryna Marchuk is an associate professor at the Centre for European, Comparative, and Constitutional Legal Studies (CECS), University of Copenhagen.

Dr Aloka Wanigasuriya is a PhD scholar at CECS, University of Copenhagen.]

Introduction

The principle of ne bis in idem holds sacred value in criminal law, as it aims to safeguard the integrity of criminal process by not allowing the prosecution of a person twice for the same conduct. While the essence of the principle is clear, its practical application may be fraught with difficulties. Dr Gaiane Nuridzhanian’s monograph on the subject is a timely addition to academic scholarship, emphasizing the importance of the principle in international criminal law, both in theory and practice (p. 1). The practical significance of the principle is heightened by the increased possibility for the same individual to be tried with regard to the same conduct in multiple criminal jurisdictions, especially where core international crimes are concerned (pp. 2-3).

The accountability initiatives for atrocity crimes committed in Ukraine, which have proliferated following Russia’s full-scale invasion, may have had the effect of inadvertently creating tensions with the principle of ne bis in idem. The sheer scale and abhorrent nature of the crimes, particularly in the occupied territories, have triggered various accountability mechanisms, including the jurisdiction of the International Criminal Court (ICC), foreign proceedings under the principle of universal jurisdiction, and domestic prosecutions in Ukraine. This may lead to situations where the same individual is sought for prosecution and trial by different domestic or international actors who may not even be aware of the overlap. This blog explores the tension between the principle of ne bis in idem and the principle of complementarity in the ICC through the lens of the ongoing criminal proceedings against four Russian military commanders subject to ICC arrest warrants. 

Domestic Proceedings Against ICC Suspects Through the Lens of ne bis in idem

Out of the six outstanding arrest warrants at the ICC against the senior Russian leadership, it is peculiar that four suspects, namely Valery Gerasimov, Sergei Shoigu, Sergei Kobylash and Viktor Sokolov, had already been subject to criminal proceedings in Ukraine. The fate of these proceedings is unknown, as it appears that none of them have passed the pre-trial stage and some information is no longer available on the official websites of the Office of the Prosecutor General (OPG) or Secret Service of Ukraine (SSU). What is important to note however, is that despite such domestic proceedings, none of these persons have been convicted or acquitted by the Ukrainian courts. Therefore, the ICC’s issuance of arrest warrants does not appear to conflict with ne bis in idem principle as articulated in Article 20 of the Rome Statute (RS). The aforementioned domestic criminal proceedings were initiated in absentia, as the Ukrainian legal procedural framework allows for it, provided they comply with Article 6 of the European Convention on Human Rights (ECHR). Therefore, it is not implausible to imagine that a suspect who is wanted by the ICC may be convicted in absentia by a Ukrainian court, while the ICC’s arrest warrant remains in force. The question arises whether, if such a hypothetical scenario were to take place, it would serve as a basis for the ICC to close its case by invoking the ne bis in idem principle. To engage in this analysis, it is important to take a closer look at the status of some criminal proceedings that have been initiated at the domestic level in Ukraine against the above-mentioned ICC suspects. 

At the time of the issuing of the ICC arrest warrant, Valery Gerasimov, a former Chief of Staff of the Armed Forces of the Russian Federation, was already a person of interest to the Ukrainian authorities. In 2015, the SSU served a notice of suspicion and declared him a wanted person for his role in preparing and launching an armed conflict on the territory of Ukraine. It was alleged that Gerasimov conducted subversive activities on the territory of Ukraine; directed military exercises of Russian troops in Donbas; deployed tanks, artillery systems and military personnel who encircled the Ukrainian armed forces near Illovaisk (‘Illovaisk cauldron’), which resulted in heavy military losses for Ukraine. A year later, the OPG served a notice of suspicion to Gerasimov and other senior Russian leaders for their role in waging an aggressive war against Ukraine, which led to the death of civilians, the temporary occupation of Crimea and parts of Donbas, and other serious consequences. Gerasimov played an instrumental role in the planning of Russia’s full-scale invasion of Ukraine until his disappearance from the public eye in 2022, following Prigozhin’s mutiny. At the ICC, he is wanted on multiple charges of war crimes and crimes against humanity, including the war crime of directing attacks at civilian objects, the war crime of causing excessive incidental harm to civilians or damage to civilian objects, and the crime against humanity of inhumane acts. The charges are linked to repeated missile strikes against Ukrainian electricity infrastructure across all regions of Ukraine, which took place between 10 October 2022 and 9 March 2023. Although it may seem that domestic courts and the ICC are focusing on different episodes of atrocity crimes committed during various phases of the Russo-Ukrainian war, Gerasimov’s conduct can also be viewed as a continuing crime. The missile strikes that are central to the ICC’s arrest warrant were enabled by actions undertaken by the suspect in the lead-up to Russia’s full-scale invasion as reflected in the domestic charges.

Sergei Shoigu, a former Minister of Defence and a long-standing ally of Russian president, Vladimir Putin, has long been on Ukraine’s wanted list. In 2016, together with Gerasimov and other senior Russian leaders, he was served a notice of suspicion on the charges of the crime of aggression and war crimes. Subsequently, in May 2022, the OPG published a new notice of suspicion under Article 110 (2) of the Criminal Code of Ukraine (CCU) for public calls aimed at changing the Ukrainian state borders. While no new notices of suspicion appear to have followed after Russia’s full-scale invasion of Ukraine, Shoigu’s contribution to the war in Ukraine is difficult to underestimate, as he played a pivotal role in leading Russia’s invasion of Ukraine. One may also treat ICC charges against him as a continuation of the alleged crimes, which were earlier attributed to him by Ukrainian domestic authorities, thus creating tensions with the ne bis in idem principle.

As for Sergei Kobylash, a Lieutenant General of the Russian Armed Forces and the Commander of the Long-Range Aviation of the Aerospace Force, he is wanted for the same conduct by the ICC and domestic authorities, revealing a more obvious tension with the principle of ne bis in idem. Prior to the ICC’s issuance of arrest warrants, the SSU announced a notice of suspicion for his role in the missile attacks on civilian objects, charging him with the crime of aggression under Article 437(2) CCU and the crime of encroaching upon the territorial integrity of Ukraine under Article 110 (3) CCU. Notwithstanding the difference between the ICC’s and domestic charges, and the difference in the classification of the crimes at the domestic and international levels, what matters for the principle of ne bis in idem to apply is that one is looking at “substantially the same conduct” depending on the circumstances pertaining to each case. With regard to Kobylash, it is clear that the same conduct forms part of ICC and domestic proceedings, which may indicate a potential violation of the ne bis in idem principle. 

Viktor Sokolov, an Admiral and the Commander of the Black Sea Fleet, was charged by the SSU for his role in directing missile attacks against civilian objects, which led to civilian casualties and injuries. The notice of suspicion against Sokolov alleges the commission of the crime of aggression, the crime of encroaching upon the territorial integrity of Ukraine, and violations of the laws and customs of war. In this case, it is not only the same conduct that forms part of both the ICC’s and domestic proceedings, but there is also a clear overlap in the charges. Therefore, the same discussed previously regarding Kobylash, would be relevant in this instance. 

ICC’s Take on Complementarity and the Principle of ne bis in idem: Relevance for the Situation in Ukraine  

The aforementioned cases illustrate an intricate relationship between ne bis in idem principle and the principle of complementarity. The two principles are intertwined, speaking to the very core of the ICC’s ability to exercise its jurisdiction and the Court’s relationship with national judicial systems. Article 17(1)(c) RS addresses the situation where a person has already been tried for the same conduct by another court, thus precluding a trial in the ICC in line with Article 20(3) RS. The latter provision does not permit a second trial before the ICC unless ‘the proceedings in the other court’ were tainted with irregularities as reflected in article 20(3)(a) and (b) of the Statute” (para. 34 PTC Gaddafi Admissibility Challenge Decision). 

Within the Ukrainian context, should the Ukrainian authorities proceed with trying in absentia an individual, who is subject to an ICC arrest warrant, within its national judicial system, and end up convicting them, an admissibility challenge may later be raised at the ICC by such an individual. The ICC has earlier set a precedent in Saif Gaddafi’s case, in which it found the case admissible before the ICC, despite the fact that Gaddafi had already been tried and convicted by the Tripoli Criminal Court in Libya. In its decision, the PTC stated that the wording of Article 20(3) “suggests that the person has been the subject of a completed trial with a final conviction or acquittal and not merely a trial “with a verdict on the merits” or a mere “decision on conviction or acquittal by a trial court”. A domestic judgement rendered in absentia is not considered by the ICC as having acquired res judicata effect (being final), and therefore, does not render the case inadmissible before the ICC (para. 36, PTC Gaddafi Admissibility Challenge Decision; paras 58, 63 Appeals Gaddafi Admissibility Challenge Judgment). 

Nuridzhanian takes a close look at the application of the ne bis in idem principle in in absentia proceedings, noting that “a conviction or acquittal in absentia that has become final under the relevant rules of the domestic law will generally bar retrial of the person for the same matter” (pp. 18-19). The crux of the issue, as also discussed in the Gaddafi case, is whether the judgment rendered in absentia can ever be considered final (p. 121). The Ukrainian procedural framework does not explicitly guarantee the right to retrial, however, the Supreme Court of Ukraine construed the right of a convicted person to address irregularities during in absentia trial through the extension of the time limit for an appeal as an equivalent to exercising the right to retrial guaranteed by the ECtHR. In other words, any judgement rendered in absentia by a Ukrainian court cannot be considered final, unless the convicted person accepted the judgement or filed an appeal challenging the judgement, which was settled by a higher instance court. As mentioned above, none of the domestic criminal proceedings against Russian military leaders subject to the ICC arrest warrants have even surpassed the pre-trial stage, meaning that the ICC’s involvement should not be considered as interfering with the ne bis in idem principle. 

Concluding Remarks

As rightly pointed out by Nuridzhanian, the ne bis in idem principle in Article 20 RS is a “complex formula”, which, on the one hand, seeks to “to protect the person’s interest in not being tried twice for the same matter”, “while also respecting the complementary nature of the ICC’s jurisdiction” (p. 156). Ukrainian authorities have refrained from proceeding in absentia with trials against Russian senior military commanders, thereby expressing a preference for proceedings before the ICC. Considerations regarding the ne bis in dem principle might have played a role in the decision of Ukrainian authorities to shelve in absentia proceedings. A trial conducted in absentia in Ukraine would undoubtedly be subject to accusations of bias from Russia. While potentially more expedient than an ICC trial, domestic trials in absentia may be perceived as largely symbolic, offering little solace to victims of atrocity crimes. However, it remains uncertain whether the ICC would ever be able to secure the arrest of Russian nationals subject to its arrest warrants. Setting aside the feasibility of arrests, the issuance of ICC’s arrest warrants against Russian senior military leaders endorsed by the bench of international judges carries greater authoritative weight, while providing a broader exposure of the international community to the atrocity crimes committed on the territory of Ukraine. The situation in Ukraine serves as a pertinent case study that highlights the inherent trade-offs between domestic and the ICC proceedings, illustrating the intricacies of the practical operation of the ne bis in idem principle and complementarity.