Ne Bis In Idem in Article 20(3) of the Rome Statute and Non-State Courts

Abstract

Article 20(3) of the Rome Statute bars the International Criminal Court from trying a person for conduct proscribed by the Statute if the person has already been tried in relation to the same conduct before “another court,” provided that the proceedings in the other court were genuine. The article discusses application of Article 20(3) of the Rome Statute and, by implication, of the Court’s admissibility framework to non-State courts. It argues that Article 20(3) applies where there has a been a trial before a court of a State, whether that State is a party or not to the Rome Statute. Article 20(3) can in principle apply to a trial before a non-State court were the trial to satisfy the customary international law rules on attribution of conduct to a State.