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

See all articles by Jean Pierini

Jean Pierini

Facoltà di Giurisprudenza Dipartimento di Diritto pubblico e processuale (DIPU)

Date Written: December 6, 2016

Abstract

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

Pierini, Jean, The Ne Bis in Idem Principle and Alleged Drifts in the International Practice: The 'Mistrial Without Prejudice' in the Kenyan ICC Cases (December 6, 2016). Available at SSRN: https://ssrn.com/abstract=3015893 or http://dx.doi.org/10.2139/ssrn.3015893

Jean Pierini (Contact Author)

Facoltà di Giurisprudenza Dipartimento di Diritto pubblico e processuale (DIPU) ( email )

Via Balbi 5
Genova, Genova 16126
Italy

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