Revisiting Ne Bis in Idem in International Criminal Law: An Empirical Study of ICC Jurisprudence

One of the main purposes of the International Criminal Court (ICC) is the fight against
impunity, with a clear focus on creating justice for victims and the international
community. The defendant has not received that same attention, though the rights of
the defendant are equally important. As one of the cornerstones of fair trial rights, the
ne bis in idem principle is enshrined in most domestic legislations and also in Article
20 ICC Statute.
This thesis demonstrates the practical implications of the current ne bis in idem
protection at the ICC for defendants by providing an empirical study that has been
missing from the academic discussion to date. The research question that this thesis
seeks to answer is: What is the impact of the current ne bis in idem provision in Article
20 of the ICC Statute on subsequent prosecutions of defendants?
The research engages with the origins and rationale of the principle, before considering
ne bis in idem in International Human Rights Law to better evaluate the application at
the ICC. The theoretical framework of the ne bis in idem principle in Article 20 ICC
Statute is examined, and a particular focus is given to the complementarity principle.
Throughout the thesis, it becomes clear that certain key themes are prominent: finality,
admissibility, fair trial right, and the same ‘conduct’ element. The creation of a dataset
allows the author to analyse these themes using those defendants who have claimed a
violation of the ne bis in idem rights. It becomes clear that the current ne bis in idem
provisions at the ICC are not sufficient in preventing subsequent prosecutions. The
author suggests reconsidering the current approach to the ne bis in idem principle at
the ICC and domestically to create a strong and comprehensive protection for
defendants, thereby achieving a justice-centred approach.