NE BIS IN IDEM AND ERROR OF LAW UNDER THE ICC COMPLEMENTARY REGIME: AN UNANSWERED QUERY

 

Picture of the Hague taken by jbdodane on September 24, 2017.

Article by Rohan Jain

Complementarity principle conceptualises International Criminal Court not as a court of review, but as a supplementary court imparting criminal justice, where domestic courts could not. This is manifested in the admissibility criteria established for the Court under Art.17 and Art.20 of the Rome Statute. Once the domestic courts of competent jurisdiction exercise their jurisdiction over a case, the Court no longer can admit the case. This is the principle of ne bis in idem. Conversely, where no trial has begun in domestic courts, Art.17 allows the Court to admit the case only in situations where State having jurisdiction over the crimes depicts unwillingness or an inability to prosecute the case. These two provisions on admissibility exemplify the drafters’ intent to accord primacy to domestic courts and create an international court with a role of supplementing domestic criminal system.

The principle of ne bis in idem hinges on the concept of finality of judgment. (Otto Triffterer, Rome Statute of the International Criminal Court: A Commentary, ¶901, 2016) Any judgment by domestic courts enjoys a presumption of finality under the Statute and has binding effect on the Court. However, the Statute considers the finality of such judgments to be vitiated in two situations, first where the trial was marked with a purpose of shielding the accused from international responsibility, and second where the proceedings were characterized by a lack of independence and impartiality. The Statute, however, does very little to explain the term ‘shielding’ or even the factors indicating an intent to shield. In this context, the IACHR and ECHR jurisprudence may provide a useful guidance for the Court. Any fact reflecting a perfunctory and superficial functioning of the State organs in prosecution have been held by both the courts as significant indicators of a State’s intent to shield an accused.  (Timurtas ECtHR, Velásquez-Rodríguez IACHR). More specifically in the case of Gangaram-Panday, the IACHR noted the errors and procedural flaws in ascertaining and weighing evidence presented before the domestic courts as possible reflections of a larger picture of State intending to evade from its judicial responsibilities. This raises a question as to whether an erroneous interpretation of law by domestic courts could indicate an intent to shield and could be viewed as an unwritten exception to the ne bis in idem principle.

Drafting History and the Error of Law

Numerous other exceptions to the ne bis in idem than the existing exceptions were proposed during the different phases of the Statute’s drafting. The 1994 ILC Draft Statute proposed an ‘ordinary crime’ exception to this principle, while the report of the 1990 ILC Draft Statute looked to import ‘crimes against State’ as an added exception to the list of exceptions appearing in the present provision. In addition to this, in 1990 Special Rapporteur Doudou Thiam proposed ‘lack of proper appraisal of law or fact’ as an exception to ne bis in idem principle under the draft. The proposal survived till the 42nd Session of the Commission. However, the debate around this exception died till the 1994 Draft Statute. Thus, while the Statute would not be accommodating to an independent exception of error of law, the drafting history does not answer the status of error of law as a relevant consideration in interpreting the term ‘shielding’.

Scope of Ne Bis in Idem under the Statute

Any elucidation of the exceptions to ne bis in idem turns upon understanding the nature and form of the principle as codified under the Statute. However, one must avoid loosely using this term in context of international trials. Ne bis in idem differs significantly when applied domestically and when applied in transnational and international contexts. (See, Cassese, The Rome Statute of the International Criminal Court: A Commentary, ¶707, 2009) ICC’s application of this principle differs from all these conceptions of ne bis in idem at different levels and adopts a sui generis notion of the principle. Perhaps, therefore, only a comparative analysis of this principle in different contexts could elucidate upon its peculiar scope and nature under the Statute.

Ne bis in idem forms a generally accepted principle across most domestic systems. (See, O’Keefe, International Criminal Law, ¶501, 2015) A decision of one domestic court attains finality qua other domestic court and binds them. However, domestic courts are typically placed in a position of hierarchy with one court possessing the authority to judicially review the decisions of other. The broad grounds of judicial review in domestic law mean that finality of decisions is not understood in its strictest sense and often broad exceptions like error of law fit within domestic systems.

However, where a case already tried in one jurisdiction falls for a foreign court’s consideration, ne bis in idem is far from being applied as a general principle. (See, Triffterer, ¶904; De Lacuesta, Schomburg) The concerns of sovereign rights, by both the States involved, underline such transnational trials. (See, El Zeidy, The International Criminal Court and Complementarity, 861, 2011) Attaching finality to decisions of foreign court inevitably requires a State to forgo its jurisdiction to adjudicate crimes. The text of UN Model Extradition Treaty is one of the tangible expressions of these sovereign concerns. Art. 3(d) of the Model Treaty mandates refusal of extradition request where the accused has been tried by courts in requested State. This provision reflects the position in bilateral and multilateral extradition treaties including the European Convention on Extradition; India’s treaty with Australia, US, UK; US’s treaty with UK, France, Germany; .This depicts a strong sense of resistance among states against dilution of their adjudicative jurisdiction and sovereignty manifested by disallowing an exercise of concurrent jurisdiction by courts of another state.

Even the lack of a nuanced conception of this principle at transnational level is attributable to States’ sovereignty concerns. Often scope of the principle alters from one domestic jurisdiction to another. (Cassese, ¶¶710, 713) While certain legal systems consider a case as final only when decided on merits and not dismissed on formal or jurisdictional grounds, others consider a case once dismissed as final. (See, Cassese, ¶¶710, 713; Alison Bisset). It seems to be primarily states’ resistance to alter its own domestic legal principles that translates these domestic divergences into an international impasse in building a nuanced ne bis in idem. Therefore, sovereign concerns of States have led to establishing only a primitive form of ne bis in idem at transnational level. This ne bis in idem premises itself on a narrow concept on which all States share an overlapping consensus i.e. the concern for fair trial rights of the accused. Manifested in Schengen Convention, at least at European level, lies great state consensus on a transnational ne bis in idem which defines the principle as one that protects person finally judged from facing a re-trial for same offence with the exceptions of offences against state security or interests.

At international level, the development of this principle has further been a step back. Internationally, ne bis in idem has rested on the nature of the court’s functioning with no uniform scope and application. It found its first mention in ICTR and ICTY statutes. Peculiar to these tribunals, they took primacy over domestic courts in imparting international criminal justice. (See, Art. 8, ICTR Statute; and Art. 9, ICTY Statute) Inevitably, the statutes adopted an approach where the tribunals’ decisions would bind the domestic courts, but decisions of domestic courts very often would not have such effect. Similarly, under the Rome Statute the scope of ne bis in idem is defined by the nature of the Court i.e. the complementary nature of the Court. This complementary nature of the Court distinguishes the ne bis in idem at transnational level from the ICC notion of the principle. The notion of ne bis in idem is far stricter under the Statute when compared to its transnational notion. This is manifested in the exceptions to the principle at both the levels. While for reasons like offences against the State or offences committed by public officials, ne bis in idem can be bypassed at transnational level, such broad exceptions are neither available for the Court nor compatible with its complementary nature. Under the Statute, thus, ne bis in idem appears with narrow exceptions and in a rigid form perhaps only to impel the drafter’s intention to balance the two competing values of the Court i.e. its status as a complementary court and its objective of ending impunity by exercising its jurisdiction.

Conclusion

The principle of ne bis in idem, thus, differs in its scale of rigidity as one moves from its domestic notion to transnational notion to international notion. Any question of interpretation or expansion of the principle at any level must, therefore, seem compatible with the nature of the principle.

Under the Rome Statute, any implication which the term ‘shielding’ holds is, thus, limited by the need to maintain a balance between these competing values reflected by the ne bis in idem. Error of law is, however, a term of wide import which when used unqualified transgresses beyond the limits of the complementary nature of the Court. Potentially, every erroneous ruling at the domestic level would invite the application of shielding exception under the Statute. Not only would that strike a death knell for the ICC’s complementary jurisdiction, but also, politically, the Court would lose support of State Parties and potential future signatories. Thus, the Statute’s framework would only support a notion of error of law with a qualifying standard or threshold. A grave error or an error apparent on the face of the record, or a judgment delivered per incuriam could, perhaps, be instances of a qualified error of law that could be used as indicator of ‘shielding’ under the Statute.