The notion of 'ne bis in idem' in the context of the statute of the International Criminal Court

Abstract

The conventional function of ne bis in idem is to protect an accused from being prosecuted more than once for the same offence. The principle is intrinsic to state sovereignty. In an international context, the principle is also incorporated in the Rome Statute of the International Criminal Court (ICC) under Article 20. The manner by which the ICC determines its jurisdiction to prosecute perpetrators of core crimes is a central feature of the statute and is crucial in the relationship between the Court and States. This mechanism is based on the principle of complementarity and therefore, the applicability of ne bis in idem is analysed and interpreted in relation to this principle. In situations of competing jurisdictions, ne bis in idem assumes a new dimension and operates to determine which court has jurisdiction over a case rather than as a protectoral right of an accused. Unlike in fundamental human rights instruments, the Rome Statute does not prohibit further trials concerning the same accused for the same acts resulting from conduct proscribed in the statute. This concept bolsters the objectives of the statute namely the prevalence of international justice and to serve as deterrence in the prevention of core crimes.