Is there such a thing as a Bar on Double Jeopardy in International Criminal Law?

On February 3, 2014, the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY) filed a request to reconsider the acquittal of former Chief of Staff of the Yugoslav Army Momčilo Perišić for aiding and abetting crimes committed in Sarajevo and Srebrenica between 1993 and 1995. He was acquitted by the Appeals Chamber of the ICTY based on the legal determination that in order to aid and abet crimes, one must have a specifically directed the crimes in question. Subsequent decisions by the ICTY have called this legal finding into question. The OTP now seeks to undo what it sees as an injustice. Should they be allowed to reopen the case after acquittal on appeal?

The Rules of Procedure and Evidence (RPE) of the tribunal allow for a decision or judgment to be “reviewed.” Rule 119 provides as follows:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

The formal requirements for such a motion are that there is a new “fact” and, in this case, that the request is made within one year of the issuance of the judgment in question.

Starting with the second requirement, we can see that it has clearly been satisfied. The Perišić judgment was issued on February 28, 2013, while the request was filed on February 3, 2014, just under the wire. The more interesting question is whether a determination of law is a new “fact” that can be raised to review a judgment of acquittal. I do not believe it is. Legal interpretations should not be considered “facts” for the purpose of a review of a judgment of acquittal for two reasons, one dealing with a simple interpretation of the rule and the other with general principles of justice.

The rule requires there to be a new “fact” that was not discoverable at the time in order to review a judgment. “Facts” are items of proof tending to demonstrate that the underlying crime in fact took place. These indicia are then interpreted in light of applicable law to see if they satisfy the elements of the crime in question. The OTP’s request in this case is not related to the first half of this equation, the facts, but to the second part, the law. The OTP should not be allowed to change the result of the trial simply on the clear wording of the rule.

Even if the differing legal interpretations should be considered as “facts,” they would still have to be “new,” or undiscoverable at the time of the original proceedings. This is clearly not the case here. The OTP made arguments along the lines being advanced in the request for review. It is just that the Appeals Chamber at the time rejected those arguments and made a contradictory ruling of law. Now, based on other authority, the OTP wishes to have that ruling reconsidered, this is nothing more than an attempt to get a second bite at the apple.

It is a general principle of justice that a person shall not be tried more than a single time for the same crime. This is known both as the prohibition on double jeopardy and the principle of ne bis in idem. It is enshrined in various national constitutions and international human rights documents. The rule not only protects individual rights but, like the related doctrine of res judicata, provides a needed finality to judgments and legal proceedings. The OTP in this case already had its chance to prove the crimes allegedly committed by Mr. Perišić. They failed to do so as the Appeals Chamber made a legal ruling, one that cannot be appealed as the chamber is the final instance of appeal, excluding his culpability. The OTP would like to revisit that judgment now and have Mr. Perišić re-judged based on a different legal standard. This is exactly what the prohibition on double jeopardy is designed to prevent. Justice cannot be effected through the application of a system that violates basic principles of justice.

There is a debate right now in international criminal law as to whether aiding and abetting requires there to be “specific direction.” Indicia at the moment appears to be moving away from such a requirement. Whatever the outcome of this legal evolution will be, it should not be used to retry those who have already been acquitted on appeal.



Filed under International Criminal Law, International Human Rights, News and Events

2 responses to “Is there such a thing as a Bar on Double Jeopardy in International Criminal Law?

  1. ILM

    Reblogged this on International Law Matters and commented:
    Interesting article.


    “Protection Against Double Jeopardy”
    (Civil law and Syariah Law: A Comparative Insight)

    9 May 2015 @ 4:32 PM. NST.

    THE criminal justice system is a system designed by Parliament to execute justice after sentencing of an offender/convict by the courts.

    It is a system that is constantly under extreme constraints due to unreasonable bias and expectations of evolving public perception towards offenders in jail and former convicts.

    Malaysian mathematics scholar Nur Fitri Azmeer Nordin is now serving an 18-month jail-sentence for possession of child pornography material in Britain. His prosecution and sentencing were rather swift.

    The media’s harsh spotlight on him did little to portray the humane side of criminal justice philosophy and the image of Malaysian intellectual base. FIRST, he had admitted to the offence and thereby saved the British court considerable costs, manpower and time if he had claimed trial.

    This is the first indication of remorse realisation, and,

    SECOND, there must not be double treatment of offenders who are serving or who have served time in jail in another jurisdiction (including at home country).

    The Federal Constitution protects offenders from “double jeopardy” in a sense that an offender who has served his sentence will become a free man and assumes once again the status of innocent until proven guilty.

    No doubts must be cast upon him once he returns to free society for a second chance.

    Even under syariah law, the public must treat an offender with due respect and decorum in order to promote criminal justice reformation.

    This is evident under syariah criminal law comprising hudud, takzir and qisas offences as practised by Prophet Muhammad in Madinah and Mecca.

    Furthermore, both common law criminal justice and syariah criminal justice seek similar objectives to reform offenders; but if society continues to paint offenders with the darkest hues, a progressive moderate society can never be developed in the context of a wider multicultural society.

    Jeong Chun Phuoc, Kuala Lumpur
    he may be reached at

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