The Ne Bis in Idem Principle and Alleged Drifts in the International Practice: The 'Mistrial Without Prejudice' in the Kenyan ICC Cases
19 Pages Posted: 10 Aug 2017
Date Written: December 6, 2016
The Trial Chamber of the International Criminal Court (ICC) recently terminated the last trial in the “Kenyan cases” declaring, as a consequence of a finding of no case to answer, a “mistrial without prejudice” for subsequent prosecutions. The Chamber found the prosecution not to be “genuinely weak” due to the politicization of the case, a hostile climate against the Court and interferences with the proceeding and estimated an acquittal to be grossly unjust. The paper focusses on the premises and possible consequences of the majority opinion and particularly on the assertion that article 20 of the ICC Statute is no longer in with criminal legislations progressively introducing “extraordinary remedies” in order to retrial in the interest of justice acquitted individuals. Accordingly, the paper analyzes the current stand of the ne bis in idem rule in its “international” application (characterized by a relevant potential for domestic and cross-jurisdictional influence) having regard to the jurisprudence of Human Rights bodies, and international criminal tribunals. The aim of this analysis is to verify if the current trend towards the extension of the principle is to some extent “balanced” by the progressive introduction of extraordinary remedies allowing the retrial of finally acquitted defendants.
Keywords: Ne bis in idem, reopening, retrial, mistrial, extraordinary remedies, interferences, tainted proceedings, inherent powers, International Criminal Court, ICC, International Criminal Tribunals, ICTY, ICTR, European Court of justice, ECJ, human rights, Offences against the administration of justice
JEL Classification: K14, K33, K40
Suggested Citation: Suggested Citation