Ne bis in idem, nulla poena sine lege and Domestic Prosecutions of International Crimes in the Aftermath of a Trial at the International Criminal Court

Keilin Anderson,Adaena Sinclair-Blakemore

doi:10.1163/15718123-21010001

Keilin Anderson, Adaena Sinclair-Blakemore

Open Access

https://doi.org/10.1163/15718123-21010001

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Abstract

Abstract The outcome of an icc trial – be it a conviction or acquittal – receives significant attention. However, what happens to a defendant in the aftermath of the proceeding garners little discussion. This article seeks to fill this gap in the literature by analysing how the ne bis in idem and nulla poena sine lege principles, enshrined in Articles 20(2) and 23 of the Rome Statute, protect defendants from subsequent prosecutions and punishments by states and regional courts following their trials at the icc. We argue that these provisions do not provide adequate protection. Further, we argue that given the icc’s limited power to enforce compliance with these provisions as well as the primary role that states enjoy in the enforcement of international criminal law, the most appropriate way to address this issue is through the inclusion of robust protections in domestic legislation and the constituent instruments of regional courts.

Highlights

What happens to a defendant after they have been convicted or acquitted by the International Criminal Court? The outcomes of icc trials receive significant media and scholarly attention: convictions are lauded as positive reinforcements that the icc is an effective institution delivering on its mandate of ending impunity,[1] whereas acquittals are criticised as a ‘blow for victims’ and a failure of the Court to deliver justice.[2]
This article seeks to fill this gap in the literature by analysing how the ne bis in idem and nulla poena sine lege principles, enshrined in Articles 20(2) and 23 of the Rome Statute, protect defendants from subsequent prosecutions and punishments by states and regional courts following their trials at the icc
Two decades on from the adoption of the Rome Statute, international criminal law academics and practitioners alike have developed a robust understanding of, and can confidently respond to, common issues arising at the outset of an icc proceeding, such as whether the icc has jurisdiction to prosecute and whether a case is admissible before the Court

Summary

Introduction

What happens to a defendant after they have been convicted or acquitted by the International Criminal Court (icc, the Court)? The outcomes of icc trials receive significant media and scholarly attention: convictions are lauded as positive reinforcements that the icc is an effective institution delivering on its mandate of ending impunity,[1] whereas acquittals are criticised as a ‘blow for victims’ and a failure of the Court to deliver justice.[2]. What happens to a defendant after they have been convicted or acquitted by the International Criminal Court (icc, the Court)? Where attention has been paid to post-trial issues, the focus has been on the challenges associated with, for example, defendants seeking asylum and obtaining compensation for time wrongfully spent in detention.[3] Far less consideration has been given to how the Rome Statute of the International Criminal Court (Rome Statute, Statute)[4] protects defendants from subsequent prosecutions and punishments by domestic and regional authorities. This article aims to fill this gap in the literature by critically analysing the rights that a convicted or acquitted defendant has post-proceeding, the right not to be tried or punished twice for the same crime under international criminal law. We draw on two recent examples of defendants who faced subsequent prosecutions and punishments by states following their

Nulla poena sine lege in the Rome Statute

Conclusion