Complementarity and completed trials: reforming the Ne bis in idem clause of Article 20(3) of the Rome Statute

Abstract

Article 20(3) of the Rome Statute provides that a person who has been tried by a national court for a crime over which the ICC has jurisdiction may be retried before the ICC for the same conduct, if it is established that the proceedings at the national level ‘[W]ere for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’; or ‘were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice’. This paper is concerned with the question whether article 20(3) of the Rome Statute is broad enough to allow the ICC to retry all persons who have already been tried in domestic courts of States Parties where such retrial is commanded by the interests of justice.

Keywords: Complementarity, Rome Statute, Ne bis in idem, double jeopardy, International Criminal Court