Symposium on The Principle of ne bis in idem in International Criminal Law: The Role of ne bis in idem in Transitional Justice – A Multi-level Approach to Justice, Truth, and Reconciliation

[Nandor Knust is an associate professor of law at the Arctic University of Norway (UiT)]

Gaiane Nuridzhanian’s The Principle of Ne Bis in Idem in International Criminal Law offers a comprehensive examination of the ne bis in idem principle in the realm of international criminal law. Drawing from her extensive academic and professional background, Nuridzhanian provides an in-depth analysis of how this principle functions within international legal frameworks.

Introduction

The principle of ne bis in idem, rooted in Roman law, holds that no individual should be tried or punished twice for the same offense. However, in transitional justice contexts — such as societies emerging from armed conflict or authoritarian rule — a rigid application of this principle might obstruct efforts to achieve accountability, truth, and reconciliation. In these settings, initial legal proceedings may have been marred by partiality, coercion, or systemic injustice. Revisiting past injustices is linked to uncover new information to deliver justice, which can potentially clash with the ne bis in idem norm. The question arises here how transitional justice processes can accommodate the principle while still achieving their broader objectives.

Application in Post-Conflict Scenarios with Multiple Levels

Post-conflict situations rarely rely on a single institution within their transitional justice process. Domestic courts, international tribunals, regional mechanisms, truth commissions, customary forums and administrative vetting processes often proceed in parallel. This legal pluralism is invaluable—it widens access to justice and distributes workload—but it raises the spectre of overlap. Without coordination, perpetrators might face a cascade of trials for the same conduct, or, conversely, hide behind a perfunctory earlier decision to fend off genuine prosecution elsewhere.

Nuridzhanian’s analysis is particularly pertinent in these contexts, as she examines the challenges of applying ne bis in idem across different jurisdictions. She discusses the absence of a universal customary international law rule on ne bis in idem, highlighting that its application often depends on specific treaty provisions or the statutes of international courts.

Nuridzhanian argues that establishing a coherent international application of the ne bis in idem principle enhances the legitimacy and effectiveness of (transitional) justice efforts. By preventing multiple prosecutions for the same offense, it safeguards individual rights and reinforces the finality of judgments, which is crucial for societal reconciliation and the restoration of trust in legal/state institutions. Moreover, the book emphasizes that a well-defined international ne bis in idem principle can serve as a check against potential abuses of prosecutorial power and ensure that justice processes are not perceived as politically motivated or arbitrary. This contributes to the broader goals of transitional justice, including accountability, reconciliation, justice, truth-seeking, and the (re-) establishment of the rule of law. But the principle of ne bis in idem can also create tension when balancing the need for accountability with the desire for reconciliation and social stability.

Transitional justice encompasses the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses. Its overarching goals are to ensure accountability, serve justice, and achieve reconciliation. Key to this are three interrelated objectives: justice, truth, and reconciliation. (International) Justice in this context refers to the fair and impartial prosecution of those responsible for serious crimes, such as genocide, war crimes, crimes against humanity and crime of aggression – but also national crimes. Truth involves the establishment of a reliable and inclusive historical record, often through truth commissions or other investigative bodies. Reconciliation aims to repair fractured relationships within society, fostering a shared sense of civic identity and coexistence.

Mechanisms employed to achieve these ends include criminal prosecutions, both domestic and international; truth commissions designed to investigate and document abuses; customary or religious conflict resolution systems; reparations programs to compensate victims and restore dignity; and institutional reforms to prevent recurrence, such as judicial and security sector restructuring.

This variety of approaches creates a legal pluralism, a coexistence of multiple legal systems within a social system to deal with one ‘post-conflict situation’, which is a common feature in transitional societies. This pluralism can include legal systems on the international, regional, and national level, but also customary law, religious law, etc. In such contexts, the principle of ne bis in idem serves as a crucial tool for harmonizing these diverse legal mechanisms and their possible interaction.

In transitional contexts, the strict enforcement of ne bis in idem can impede the pursuit of justice, particularly when prior legal proceedings were demonstrably flawed. For example, proceedings conducted by biased or compromised judicial institutions may have served to protect perpetrators rather than to punish them. In such cases, the emergence of new evidence or the need to correct judicial shortcomings can justify reopening investigations and conducting retrials. Legal systems and international courts have grappled with these dilemmas. Notably, the European Court of Human Rights has affirmed that the principle is not absolute, particularly in cases where earlier trials lacked fairness or where there was an abuse of process. This understanding opens a space for transitional justice initiatives to revisit cases while remaining within the bounds of international legal norms.

Tunisia provides a pertinent example. After the 2011 revolution, efforts to prosecute human rights abuses committed during the Ben Ali regime encountered obstacles due to earlier military court acquittals. The transitional justice process faced significant legal resistance from those invoking ne bis in idem, illustrating the challenge of pursuing justice in the shadow of previous, potentially compromised trials. In the landmark case of Marguš v. Croatia, the European Court of Human Rights ruled that granting amnesties or pardons for serious human rights violations contravenes the ECHR. Although the applicant had already been acquitted in domestic proceedings, the Court allowed a retrial, emphasizing that crimes such as war crimes cannot be immunized through domestic amnesties or flawed trials. 

To reconcile ne bis in idem with the imperatives of transitional justice, a multi-tiered strategy is essential. At the national level, judicial reforms must ensure the independence and competence of legal institutions to carry out credible trials. Normative frameworks should permit retrials in clearly defined circumstances, such as the discovery of new evidence or a prior miscarriage of justice. At the regional level, human rights courts and commissions play a critical role in providing oversight and establishing jurisprudence that balances individual rights with societal needs. Regional cooperation regimes among states can facilitate the exchange of information and promote legal harmonization. But also the creation of direct individual criminal responsibility created on the regional level is a strong tool for transitional justice. Internationally, one option are bodies such as the ICC that act as courts of last resort, capable of prosecuting crimes that national jurisdictions are unwilling or unable to address. The principle of complementarity, as enshrined in Article 17 of the Rome Statute, is not only a cornerstone of the ICC’s jurisdictional framework but also a vital component of the broader transitional justice discourse. In transitional justice contexts, complementarity serves as a catalyst for strengthening national legal systems. By placing the onus on states to prosecute international crimes, it incentivizes legal and institutional reforms, capacity-building, and the development of robust judicial mechanisms. This approach aligns with the goals of transitional justice, which include establishing the rule of law, ensuring accountability, and preventing future violations. Moreover, complementarity fosters a collaborative relationship between international and national actors. It allows for a division of labor where the ICC can step in when national systems fail, while also supporting domestic efforts through technical assistance, training, and resource mobilization. 

In transitional justice contexts, non-judicial mechanisms such as truth commissions and customary conflict resolution practices play pivotal roles in addressing past abuses. Truth commissions, being non-judicial bodies, do not impose criminal sanctions and thus do not trigger ne bis in idem concerns. However, the information they uncover can lead to subsequent prosecutions, raising questions about the interplay between truth-seeking and legal finality. Nuridzhanian’s framework suggests that while truth commissions operate outside the traditional judicial sphere, their findings must be carefully managed to respect the ne bis in idem principle when transitioning to formal prosecutions. Similarly, customary conflict resolution mechanisms, often rooted in local traditions, may resolve disputes and impose sanctions within communities. The recognition of these resolutions by formal legal systems varies, and Nuridzhanian’s analysis implies that for ne bis in idem to apply, such mechanisms must be acknowledged as legitimate judicial processes. This recognition ensures that individuals are not subjected to multiple proceedings for the same conduct across different systems.

Vetting processes, aimed at removing individuals implicated in past abuses from positions of power, are administrative rather than judicial. As such, they do not fall under the purview of ne bis in idem. However, Nuridzhanian’s emphasis on balancing individual rights with broader societal interests underscores the importance of ensuring that vetting procedures are fair, transparent, and respect due process. This approach prevents the misuse of administrative measures as de facto punitive actions without proper legal safeguards.

By establishing clear guidelines on the finality of judgments and the prohibition of double jeopardy, ne bis in idem can help delineate the boundaries between different legal systems. For instance, if a customary court has legitimately adjudicated a case, the principle can prevent re-litigation in formal state courts, provided that the customary proceedings met certain fairness criteria. This not only upholds the integrity of local justice mechanisms but also fosters mutual respect among various legal traditions. Moreover, ne bis in idem can act as a safeguard against forum shopping, where parties might seek the most favorable jurisdiction for their case, potentially leading to inconsistent outcomes. By recognizing the finality of decisions across different legal systems, the principle promotes legal certainty and coherence in transitional justice processes.

One question that is often discussed is if legal frameworks should incorporate exceptions to the ne bis in idem principle that allow for retrials in transitional justice contexts where earlier proceedings were demonstrably flawed or where new and compelling evidence arises. If so, such exceptions must be narrowly tailored to prevent abuse while ensuring accountability. Capacity-building efforts are vital to enhance the effectiveness and legitimacy of domestic judicial institutions. Without competent and independent courts, the integrity of transitional justice processes cannot be assured. Moreover, transitional justice mechanisms have a strong focus on victims’ rights which includes the right to an effective remedy, the right to truth, and the right to participate in proceedings. Centering victims in these processes ensures a more holistic and sustainable approach to reconciliation – but also distrute a wide acceptance by legitimation through procedure. 

Conclusion

While the ne bis in idem principle is a cornerstone of criminal justice systems, there is an urgent need for a comprehensive discussion if its application must be adapted in transitional justice settings to avoid shielding perpetrators from accountability. A nuanced, multi-level approach might be necessary to harmonize legal norms with the moral and social imperatives of justice, truth, and reconciliation. Transitional societies must be empowered to revisit flawed legal processes while respecting fundamental rights and ensuring that the scars of past injustices do not fester unaddressed. In sum, reconciling ne bis in idem with transitional justice requires both doctrinal flexibility and principled restraint. By doing so, legal systems can uphold the rule of law while contributing to the broader goals of societal healing and democratic consolidation.

Nuridzhanian’s work stands as a significant contribution to the field of international criminal law, offering a detailed and nuanced exploration of the ne bis in idem principle. The insights are invaluable for legal scholars, practitioners, and policymakers engaged in the design and implementation of transitional justice mechanisms in post-conflict societies. By addressing the complexities of multiple overlapping jurisdictions and the interplay between judicial and non-judicial processes, the book can be seen as a starting point to create a roadmap for ensuring that justice is administered fairly and efficiently, respecting the rights of individuals while promoting accountability and reconciliation. Additionally, this study has shown that there is an urgent need for further research and discussions about the role of ne bis in idem and its role within multilevel approaches of transitional justice.