Non bis in idem
Non bis in idem, which translates literally from Latin as "not twice in the same [thing]", is a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action. It is a legal concept originating in Roman civil law, but it is essentially the equivalent of the double jeopardy (autrefois acquit) doctrine found in common law jurisdictions.
The International Covenant on Civil and Political Rights guarantees the right to be free from double jeopardy; however, it does not apply to prosecutions by two different sovereigns (unless the relevant extradition treaty expresses a prohibition). The Rome Statute of the International Criminal Court creates a different form of non bis in idem.
Rome Statute and ad hoc UN tribunals
The Rome Statute establishing the International Criminal Court (ICC) states that the non bis in idem principle has a peculiar meaning, especially in comparison to European supranational law. The ICC jurisdiction is complementary to national law, and Article 20 of the Rome Statute specifies that even if the principle remains in general terms, it cannot be taken in consideration if there is unwillingness or incapability of the existence of the supranational court's jurisdiction. Article 10 of the ICTY Statute and Article 9 of the ICTR Statute both state that the principle can be enforced mainly to clarify that the ad hoc tribunal's sentences are "stronger" than the ones in domestic courts.
In other words, national courts cannot proceed against the responsible parties of crimes within the tribunal's jurisdiction if the international tribunal has already pronounced sentence for the same crimes. However, the ICTY and the ICTR can judge alleged criminals already sentenced by national courts if both of the following occur:
- the sentence defined the crimes as "ordinary".
- the judiciary of the state is not considered impartial or the domestic trial is considered to be a pretense to protect the accused from the legal action of international justice or is considered to be unfair on some fundamental legal basis.
- Buckland, W.W. (1963). A Text-book of Roman Law from Augustus to Justinian (3 ed.). Cambridge: Cambridge UP. pp. 695–6.
- For example, see A.P. v Italy, UN HRC CCPR/C/31/D/204/1986
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