Symposium on The Principle of ne bis in idem in International Criminal Law: ne bis in idem in the Context of the ICC Cases Arising From the Situations in Africa

[Dr Daniel R. Ruhweza is a senior lecturer and head of the Department of Law and Jurisprudence at the Makerere University School of Law]

Gaiane Nuridzhanian’s The Principle of ne bis in idem in International Criminal Law examines the common law principle of double jeopardy as established in the Rome statute under Article 20 as a legal principle. This Statute establishes the International Criminal Court (ICC) and in its Article 20 prohibits it from persecuting a person for conduct previously persecuted by another court, where the earlier proceedings were conducted independently or impartially and were not intended to shield the accused from criminal responsibility for crimes within the ICC’s jurisdiction. In explaining this principle, Gaiane makes use of ICC cases arising from Africa and explains how the existing law on ne bis in idem as well as the phrasing of Article 20 have played a role in the understanding and application of the principle.

Gaiane, in her introduction, establishes that the main purpose of the principle is to protect the individual as it serves to “spare the accused the burden of a repeat trial”, protect them from “unnecessary harassment and uncertainty” and “safeguard their liberty” once they have already faced trial for the matter. Additionally it serves to restrict the state’s power over an individual, ensure the finality of judicial decisions, and maintain public confidence in the criminal justice system.

An idealistic picture is painted by the purpose of the principle but this has only been partially fulfilled in regards to cases arising from the situations in Africa. The wording of Article 20 is to the effect that the protection promised by the principle is not absolute but rather balanced against other interests which are often affected by the exact circumstances of the prior proceedings as well as the specific rule under which the article is being applied. Gaiane relays that the court considers, in relation to the prior proceedings; the finality of the prior judicial decision, the type of court and the genuineness of the proceedings. In regards to the specific rule, she highlights the jurisdiction in question, that is to say intra-jurisdictional vs. inter-jurisdictional, as well as same crime vs. same conduct.

The ne bis in idem is addressed in this book within the context of the ICC cases arising from the situations in Africa following the specifications in Article 20 and I shall review these below.

Article 20(1) embodies the intra-jurisdictional aspect of the ne bis in idem principle, as it applies within the ICC itself, barring retrial of persons already tried by the ICC. The author lays down the conditions necessary to apply this section to include a trial of a person before the ICC, a prior conviction or acquittal by the ICC, the finality of the prior conviction or acquittal and the same conduct forming the basis of the crimes. The triggering of the principle relies on these conditions and the termination of the case before without a conviction or acquittal would have the opposite effect. In consideration of this provision, the author makes reference to the cases of Prosecutor v. William Samoei Ruto and Joshua Arap Sang as well as The Prosecutor v. Uhuru Muigai Kenyatta where the charges were vacated midtrial and withdrawn pre-trial respectively, hence preventing the ne bis in idem principle from applying. Finality after the determination of merits was not met in these cases since there is no conviction or acquittal, therefore the accused persons in these cases are liable for retrial before the ICC. Indeed, the protections afforded by the principle to persons are in such circumstances unavailable, specifically, politically charged cases with external interference may block judicial closure and leave the affected persons available for retrial at a later date. Whereas this may be applied to ensure justice of affected persons, one must consider the effect of stretching the ne bis in idem principle’s boundaries through retrials which undermine its spirit as elucidated by Jean Paul Pierini. Notably the cases handled in the ICC arising from African situations are usually politically charged and may be difficult to handle in the domestic courts due to aspects like limited evidence and witness intimidation. The principle ensures that the accused is dealt with accordingly even if the first trial is dismissed.

Article 20(2) brings forth the inter-jurisdictional rule, applying between the ICC and a national criminal court of a state party. This rule prohibits a person from being 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 ICC. Gaiane lays down the conditions necessary for this provision to apply, with the more contentious one being, “the use of the term ‘crime’ in Article 20(2), in contrast with the term ‘conduct’ in Article 20(1) and (3), suggests that the ne bis in idem rule in Article 20(2) bars trial for the same offence rather than for the same conduct” (p. 93). Conduct refers to the acts or events underpinning the charges while the crime refers the specific legal offence such as those highlighted in Article 5. The difference in the wording of the provisions raises concerns on how it undermines the principle’s goal of protecting persons from double jeopardy since they could stand to be retried in domestic courts for the same conduct amounting to different crimes recognized by the ICC and the domestic courts. The author demonstrates this using the case of Prosecutor v. Katanga, where following his conviction by the ICC for crimes committed in the Democratic Republic of Congo (DRC), the accused faced charges in DRC for crimes allegedly committed before his trial at the ICC. While reviewing DRC’s prosecution under Article 108 it was established that the ne bis in idem principle was not violated, owing to the legally distinct nature of the charges being brought against him in the domestic court. Notably the narrowing of the principle’s scope was as a result of the use of the term “crime” even though the acts targeted by the domestic prosecution were closely related to the matters handled in the ICC case.  

As explained by the author, the approach taken in Article 20(2) seems to indicate a level of respect towards state’s discretion in legally characterising criminal conduct over which it has jurisdiction. The view herein is that the provision limits the individual’s interest in not being tried twice in favor of the state’s interest in exercising its sovereign criminal jurisdiction. Given the existing political climate in various African states however, this position puts to question the validity and availability of the principle’s protections to persons especially in regards to human rights concerns. Currently the statute presents a tricky balance between state and individual interests, with the promised individuals’ protections being secondary concern. There’s therefore a need to harmonize the terminology used in the statute or enhance the ICC oversight to control and mitigate successive prosecutions. 

Article 20(3) is similarly concerned with the inter-jurisdictional rule which bars the ICC from trying a person, with respect to the same conduct, who has already been tried by another court for conduct also proscribed under Articles 6, 7, 8, or 8 bis of the Rome Statute. This provision also provides the exceptions to the ne bis in idem rule which permit an ICC trial if the prior domestic proceedings were for the purpose of shielding the person from criminal responsibility or were not conducted independently or impartially in accordance with due process norms and were inconsistent with an intent to bring the person to justice. Much like the previously discussed provisions, the ne bis in idem principle enshrined herein requires the prior judicial proceedings to have resulted in a final decision on the person’s criminal responsibility and the author demonstrates this using the case of Prosecutor v. Saif Al-Islam Gaddafi. The author argues that this provision uses “conduct” to bar ICC trials for acts previously tried domestically and allowed the ICC to assess the genuineness of Libya’s domestic trial of Saif Al-Islam Gaddafi. The ICC’s evaluation focused on whether Libya’s judicial proceedings had resulted in a final decision to the merits, thus acquiring the res judicata effect, and that they were not intended to shield Gaddafi from accountability for crimes against humanity. A pivotal point in this assessment was the lack of finality in regards to the judicial proceedings in the domestic courts, removing the accused from the protection of the ne bis in idem principle. In her assessment Gaiane emphasizes that Article 20(3) supports the ICC’s complementary jurisdiction by allowing intervention when domestic courts are unwilling or unable to prosecute genuinely. She notes that the Gaddafi case in specific illustrates how Article 20(3) balances state sovereignty with international accountability, particularly in African post-conflict settings.

It should be noted however that the strict requirement of a final decision in the domestic proceedings so as to trigger the ne ibis in idem principle provides the ICC with a wide berth to override domestic decisions which ultimately undermines state sovereignty as seen in the Gaddafi case. It could be argued that by applying this provision the ICC unfairly penalizes post-conflict states with limited judicial capacity by undermining their judicial processes. Persons that haven’t received final judgements are open to retrial at the ICC even when they’ve undergone domestic trials on the same conduct. Notably however the reference to conduct instead of crime in this provision creates a broader ambit against ICC retrials of domestically tried matters contrary to the narrow barring put in place in subsection 2. 

Conclusively, while analyzing the ne bis in idem principle as a whole as discussed by Gaiane, one can appreciate the author’s distinct and clear analysis of the guiding law and its application to ICC cases arising from situations in Africa. There’s a clear show of African contextual awareness with the author clearly acknowledging the various situations giving rise to the cases arising from the situations in Africa such as in Libya, Kenya and DRC. There is a need to consider various concerns made by scholars and the African Union in regards to fairness and selective justice on the part of the ICC as well as highlight reform proposals relating directly to the shortcomings relating to ICC cases arising from situations in Africa.