The Exclusion of Ne Bis In Idem at The International Criminal Court: An Unbalanced Concept of Justice

Abstract

Ne bis in idem has always been understood and implemented as a non-derogable principle that gives legal protection to Defendants in court proceedings. The International Criminal Court (“ICC”), however, allows ne bis in idem to be excluded by invoking Article 20(3) of the Rome Statute if certain conditions are met. Not only this rule could potentially threaten the concept of finality of a judgment, it also arguably drifts away from the whole understanding of ne bis in idem in the first place. Regardless, the exclusionary clause was finalised, leaving one unanswered question: Is there an imbalance concept of justice from invoking Article 20(3)? This Article therefore aims to provide two legal analysis relating to ne bis in idem in the context of ICC. First, on any potential harms to Defendants rights that could be violated. Second, on the justification laid out by the exclusionary clause if there are any rights being violated.