The Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in Idem

One of the concerns expressed about the implementation of complementarity under the ICC statute is whether a state will have the prerogative of deciding which crimes to charge without running the risk that the ICC will minimize the State’s choice by prosecuting the same acts under the ICC statute. The primary question is what happens if a State chooses to prosecute for an “ordinary” crime, such as murder or rape, rather than for an “international” crime, such as genocide, crimes against humanity, or war crimes? Suppose, for example, that a State is prosecuting or has prosecuted an accused for multiple murders for a particular incident that also arguably was part of a widespread or systematic attack against a civilian population. Is the case inadmissible in the ICC or could there be a prosecution in the ICC for crimes against humanity of murder? Assuming that jurisdictional requirements are met, the issue becomes one of admissibility of the matter and, in the case of completed cases, also an issue of ne bis in idem, or double jeopardy. A case is not admissible in the ICC if a State with primary jurisdiction is willing and able to proceed with the investigation and prosecution or if the accused was already tried for the conduct and a further prosecution is now barred under the ne bis in idem provision. There are exceptions, however, to the willing and able provision and to the ne bis in idem bar if the State prosecution is a “sham” trial, shielding the accused from responsibility, or was an improper proceeding, lacking in independence or impartiality and inconsistent with bringing the accused to justice. While the issue of “ordinary” crimes occurs with both the “willing and able” standard and the ne bis in idem standard, the focus of this paper will be on the situation in which a State has already prosecuted an accused for a crime, resulting in a conviction, an acquittal, or another final determination of the case. The prior adjudication triggers the principle of ne bis in idem, or double jeopardy. I will develop the point that the design of the ne bis in idem principle in the ICC statute is highly protective of State prosecutions and is expressly different from the statutes for the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) that permit greater control by the international tribunal than exists with the ICC. The definitions chosen for ne bis in idem in the ICC statute foster the priority of States in initially prosecuting crimes, give states great leeway to prosecute after an ICC prosecution, and greatly limit the ability of the ICC to prosecute after a state adjudication of the facts. Although the application of the ne bis in idem provision is not settled since the ICC has yet to interpret it, a broad interpretation of ne bis in idem that favors state prosecutions over ICC prosecutions would be more consistent with the language of the statute and the underlying principle of complementarity. This is not to say that the extensive deference to State prosecutions is necessarily the best balance between national and international prosecutions. The deferential approach will potentially preempt ICC jurisdiction in cases in which one might argue that an international prosecution based on more serious crimes would result in greater justice. Significantly for the accused, the State-protective approach of the ICC statute may result in multiple prosecutions for the same conduct. While these concerns are not inconsequential and deserve consideration from a policy and drafting perspective, this paper focuses on the interpretation that, from a legal analysis, follows from the ICC statute as it was in fact drafted. As presently constituted, the ICC ne bis in idem provisions are protective, rather than preemptive, of State prerogatives. The general principle of ne bis in idem and a detailed analysis of the ICC provisions are laid out in the following sections. Section II provides an overview of the basic terminology and concepts used with ne bis in idem, including the difference between a narrow definition that uses “crime” or “elements” and a broad definition that uses “conduct,” “acts,” or “facts.” Section III describes the statutory provisions of the ICC statute and analyzes the meaning of the terms “crime” and “conduct” in the statute. The meaning is considered in light of the drafting history, the language differences in each paragraph of the ne bis in idem provision, the distinction between the provisions in the ICC statute and the statutes of the ICTY and the ICTR, and a comparision with the interpretation of ne bis in idem language with regard to the European arrest warrant. The conclusion is that the most accurate interpretation of the ICC statutory provisions would provide for a broad ne bis in idem prohibition when a national prosecution is followed by a potential ICC prosecution, blocking a subsequent ICC prosecution based on the same conduct. Section IV then explores whether the exceptions to ne bis in idem would have the effect of narrowing the ne bis in idem protection. Here, too, the conclusion is reached that, barring evasive, deceptive practices, it is unlikely that the exceptions would change the result that most national prosecutions would bar subsequent ICC prosecutions for the same conduct. As a conclusion, Section V is a summary of the major points why state prosecutions are given deference under the ICC ne bis in idem provisions and also a brief commentary on other unresolved issues related to ne bis in idem.