Reflections on 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 proclaims that no one shall be tried twice for the same matter. This principle finds expression in a variety of ne bis in idem rules that define the specific parameters of the prohibition on repeat trial. While the ne bis in idem rules share certain generic elements, the precise content of these rules differs. 

In international criminal law, the principle of ne bis in idem is primarily embodied in treaty-based ne bis in idem rules found in the statutes of international criminal courts and tribunals and in bilateral and multilateral treaties on mutual assistance and cooperation in criminal matters. The ne bis in idem provisions in human rights treaties are also relevant to the prosecution of international crimes in domestic legal systems. These treaty-based ne bis in idem rules share the same rationale and generic elements, but their precise content differs. Article 20 of the Rome Statute of the International Criminal Court (ICC), which contains three distinct ne bis in idem rules, is a prime example. To illustrate, Article 20(1) of the Rome Statute bars trial by the ICC of a person who has already been convicted or acquitted for the same conduct by the ICC. Article 20(2) prohibits trial by a domestic court of a state party of a person who has already been convicted or acquitted of the same crime by the ICC. Article 20(3) bars, with certain exceptions, trial by the ICC of a person who has already been convicted or acquitted by a domestic court of any state with jurisdiction over the case. 

These rules are similar in that, for any of the ne bis in idem rules in Article 20 of the Rome Statute to apply, four cumulative conditions must be fulfilled: that a person presently faces the prospect of trial by a court, that the person already have been tried by another court, that this prior trial has resulted in a final decision, and that the new trial concerns the same matter. However, the scope of the protection against repeat trial and the jurisdictional reach of each of the rules in Article 20 of the Rome Statute differs depending on the context and the balance struck between the various interests that these rules seek to accommodate. In general terms, these competing interests are the person’s interest in not being tried twice for the same matter; the state’s interest in the sovereign exercise of its criminal jurisdiction and characterising as it sees fit the conduct over which it is exercising its criminal jurisdiction; and the interests of the public, of the international community, and of victims in seeing accountability for crimes ensured.

Applying a doctrinal methodology and using international law rules on treaty interpretation, my book The Principle of ne bis in idem in International Criminal Law carefully analyses the content of ne bis in idem rules in Article 20 of the Rome Statute. That the application of Article 20 of the Rome Statute in practice continues to raise many contentious issues follows from the excellent contributions to this symposium by Megumi Ochi, Iryna Marchuk and Aloka Wanigasuriya, Daniel R. Ruhweza, and Nandor Knust. My response will focus on four selected issues, namely the application of ne bis in idem in Article 20(1) to mistrials; the scope of ne bis in idem protection in Article 20(2) of the Rome Statute; the finality requirement and the application of ne bis in idem in Article 20(3) to in absentia trials; and the role of ne bis in idem in transitional justice processes. 

Ne bis in idem in Article 20(1) and Mistrials   

In his contribution to this symposium, Daniel R. Ruhweza discusses, among others, the important issue of the applicability of ne bis n idem in Article 20(1) of the Rome Statute to midway terminations of proceedings. Article 20(1), to recall, bars the ICC from trying a person who has already been convicted or acquitted for the same conduct by the ICC. The specific question is whether termination of the case by the ICC without an acquittal or conviction bars future trial by the ICC of the same person for the same conduct. For example, in Ruto and Sang case the ICC declared a mistrial, while in Kenyatta case the charges had been withdrawn before the trial commenced. Ruhweza observes that in both cases the accused are liable to retrial by the ICC which, while important for achieving justice for victims, may be undermining the spirit of ne bis in idem. 

In my book, I draw a distinction between the cases of Kenyatta, on the one hand, and Ruto and Sang, on the other (pp. 66-69). Kenyatta concerns the termination of a case on procedural grounds without a determination of the guilt of the accused regarding the Prosecutor’s charges. Such procedural decision is not an acquittal or conviction either formally or in substance and the ne bis in idem in Article 20(1) therefore does not apply.  In contrast, the decision on vacating of charges because of the alleged witness interference in Ruto and Sang, as I have argued in my book (p. 69) and elsewhere, is in substance an acquittal: the decision contains a reasoned and substantiated majority finding that no sufficient evidence existed to convict the accused. To be sure, a mere declaration of invalidity of a trial – also referred to as mistrial – without examination of the substance of the charges does not trigger the application of ne bis in idem in Article 20(1). But the decision in Ruto and Sang is not simply a declaration of mistrial. It is an evaluation of the substance of the charges brought against the accused and a finding that evidence to prove these charges are lacking. It was however formally declared as vacating of charges and a mistrial specifically to circumvent the barring effect of Article 20(1) and to leave the possibility of future retrial open, which in my view undermines the principle of ne bis in idem.

The scope of ne bis in idem protection in Article 20(2) of the Rome Statute

Article 20(2) of the Rome Statute provides that ‘[n]o person shall be tried by another court for a crime referred to in article 5 [of the Rome Statute] for which that person has already been convicted or acquitted by the Court’. Applying general and supplementary rules of treaty interpretation, I conclude in my book that the scope of ne bis in idem protection in Article 20(2) is limited to a bar on trials for the same offence rather than the same conduct, however formally characterised (pp. 93-101). In other words, Article 20(2) does not probit subsequent domestic prosecution for the conduct in respect of which the person has already been convicted or acquitted by the ICC, provided such conduct is legally characterised as a different crime in the domestic proceedings. Neither is such a subsequent domestic trial for the same conduct prohibited by customary international law because, as Megumi Ochi correctly notes, no customary international law ne bis in idem rule applicable between jurisdictions exists (pp. 34-35). The international human rights guarantee of ne bis in idem does not bar subsequent domestic prosecution either because it only applies within one and the same jurisdiction (pp. 29-30, 108). In his contribution to this book symposium, Ruhweza questions whether Article 20(2) of the Rome Statute provides an adequate protection against repeated trials and points out the need to either amend Article 20(2) or strengthen the ICC’s oversight over subsequent domestic prosecutions. 

In my book, I argue in favour of amending Article 20(2) of the Rome Statute to prohibit subsequent domestic trial of a person for the same conduct for which they have already been acquitted or convicted by the ICC (pp. 109-110). Subsequent domestic trials for the same conduct under different charges, as Megumi Ochi observes, can be important for accountability for crimes that, while based on the same conduct as the ICC case, are not prosecuted as such at the international level. In my view however, a broader ne bis in idem rule that prohibits subsequent domestic trial in relation to the conduct for which the person has already been acquitted or convicted by the ICC does not stand in the way of accountability. To the contrary, a broader ne bis in idem rule can contribute to a more effective and comprehensive prosecution on both domestic and international levels, while offering a better protection against repeated trial for the same conduct and therefore strengthening due process in the prosecution of international crimes. For example, a broader ne bis in idem rule in Article 20(2) may incentivise states to conduct domestic prosecution to pre-empt the ICC’s involvement and the consequent barring effect of ICC judgments. In such cases, state authorities can fully exercise their discretion to decide which crimes to prosecute in the domestic case, while the ICC by virtue of Article 20(3) will be barred from prosecuting the same person for the conduct that formed basis for the domestic prosecution (unless the domestic prosecution did not amount to a genuine trial within the meaning of Article 20(3)(a) and (b) of the Rome Statute). 

Ultimately, the scope of the protection against repeated trials is a matter of balancing various interests. The need for accountability for grave and large-scale crimes and providing justice to victims may well justify a narrower protection of the accused against repeated trial. In view of the abovementioned “disciplining” effect of a broader ne bis in idem rule, accountability can be achieved without compromising the principle of ne bis in idem. 

Ne bis in idem in Article 20(3) of the Rome Statute, Finality and in absentia Trials

Iryna Marchuk and Aloka Wanigasuriya raise an important issue of application of ne bis in idem in Article 20(3) to the Rome Statute to in absentia domestic proceedings. The issue is particularly relevant in the situation in Ukraine, where four persons wanted by the ICC are also subject to criminal proceedings in Ukraine. The majority of cases against members of the Russian armed forces are prosecuted in Ukraine in absentia. The question is whether the domestic trial in absentia bars the ICC from trying the same person for the same culpable conduct. 

To recall, Article 20(3) of the Rome Statute bars, with certain exceptions, trial by the ICC of a person who has already been convicted or acquitted by a domestic court of any state with jurisdiction over the case. While not explicitly mentioned in Article 20(3), for ne bis in idem to apply, the domestic acquittal or conviction needs to enter into final force (pp. 125-127). As Marchuk and Wanigasuriya correctly observe, the ICC confirmed the requirement of finality for the application of ne bis in idem in Article 20(3) in the Gaddafi case. According to Ruhweza, a strict requirement of finality as applied in the Gaddafi case undermines state sovereignty as well as the protection against repeated trial of a person whose acquittal or conviction by a domestic court has not become final. As my book explains, the condition of finality for the application of ne bis in idem protection means that the ICC can examine the entirety of the domestic proceedings (pp. 125-127). The finality requirement therefore serves the purpose of ensuring genuine prosecution for the conduct amounting to international crimes and avoiding a situation in which the ICC is barred from prosecuting a person who is deliberately shielded by responsibility by a final domestic decision.

Based on the Gaddafi admissibility decision, Marchuk and Wanigasuriya conclude that the ICC does not consider domestic judgments delivered in absentia as being final and that such judgments do not therefore render the case inadmissible before the ICC. 

In my view, the in absentia character of the domestic proceedings and the finality of a domestic judgment are closely connected but discrete matters. Whether a domestic judgment is final for the purposes of ne bis in idem in Article 20(3) of the Rome Statute is to be defined according to criminal procedural rules in the relevant domestic legal system. These rules may stipulate that a judgment delivered in absentia is not final until, for example, it is reviewed by a higher court, as in the Gaddafi case (para. 48, PTC Gaddafi Admissibility Challenge Decision). In that case, a domestic judgment delivered in absentia will not comply with the finality requirement in Article 20(3). It is however the finality of the judgment as regulated by the domestic law rather than the in absentia character of the domestic proceedings that is decisive for the application of ne bis in idem in Article 20(3). In other words, a domestic judgment delivered in absentia that becomes final according to the relevant domestic law will bar subsequent prosecution of the person by the ICC for the same conduct despite the in absentia character of the domestic proceedings (pp. 18 and 121). 

Whether in absentia proceedings comply with the fair trial rights of the defendant is a separate issue. A breach of fair trial guarantees in the domestic proceedings does not per se allow retrial of the same person for the same conduct by the ICC. Only if domestic in absentia proceedings amount to a sham trial will they fall under the exception to ne bis in idem envisaged in Article 20(3) (a) and (b) and thereby render the ICC competent to retry the case (pp. 131-144). 

Ne bis in idem and Transitional Justice Processes 

As Nandor Knust observes, transitional justice processes often involve multiple institutions of a judicial or non-judicial nature operating at international, regional and domestic levels. The principle of ne bis in idem plays an important role in this context. Specific ne bis in idem rules based on this principle can restrict the prosecution of a perpetrator in multiple jurisdictions. The same rules can limit the scope of the individual protection from repeat trial to ensure that perpetrators shielded from accountability in domestic courts do not evade justice. To illustrate, ne bis in idem rules in Article 20(2) and (3) of the Rome Statute form part of the complementarity framework of the ICC. These rules regulate the admissibility of the cases before the ICC in cases of prior domestic trials and establish limits of the domestic prosecutions following a conclusion of a case before the ICC. None of these ne bis in idem rules is absolute because other important interests, namely the need to ensure genuine accountability for international crimes, prevails in certain instances over the individual’s right not to be tried more than once for the same matter. At the same time, the role of ne bis in idem in the transitional justice context is limited. One reason is that ne bis in idem rules apply only to the proceedings of judicial nature, while non-judicial forms of post-conflict societal reconciliation fall outside its ambit. Other considerations such as those related to the interest of justice may also be important in determining the need for the involvement of the ICC in the prosecution of international crimes dealt with at the domestic level.