![handle is hein.journals/anjllwa1 and id is 1 raw text is: AJLHR 1 (2017)
COMPLEMENTARITY AND COMPLETED TRIALS: REFORMING THE NE
BIS IN IDEM CLAUSE OF ARTICLE 20(3) OF THE ROME STATUTE
Abstract
Article 20(3) of the Rome Statute provides that a person who has been tried by a national court
for a crime over which the ICC has jurisdiction may be retried before the ICC for the same
conduct, if it is established that the proceedings at the national level '[W]ere for the purpose of
shielding the person concerned from criminal responsibility for crimes within the jurisdiction of
the Court'; or 'were conducted in a manner which, in the circumstances, was inconsistent with
an intent to bring the person concerned to justice'. This paper is concerned with the question
whether article 20(3) of the Rome Statute is broad enough to allow the ICC to retry all persons
who have already been tried in domestic courts of States Parties where such retrial is commanded
by the interests of justice.
Key words: Complementarity, Rome Statute, Ne bis in idem, double jeopardy, International
Criminal Court
1. Introduction
On 17 July 1998, representatives of 148 States convened in Rome, Italy, and voted to
adopt the Rome Statute of the International Criminal Court (hereafter referred to as the
Rome Statute).1 Because of its mandate and its enforcement powers, the International
Criminal Court (ICC) has been hailed as a major advance on the road towards individual
accountability for the perpetration of the most heinous violations of human rights
(hereafter referred to as international crimes) and thus as a major contribution to the
prevention of such horrible crimes.2
However, with its limited resources in terms of human and financial means, the ICC will
not be able to deal with all perpetrators of the crimes that come under its jurisdiction
wherever such crimes are committed throughout the world.3 For this reason, in order to
end impunity in the commission of international crimes, there will always be a need for
combined efforts by the ICC and national courts.4 This reality is recognised by the Rome
* By Evode KAYITANA, LLB (NUR), LLM (Unisa), LLD (NWU, Potchefstroom). The author is a
lecturer in the School of Law, University of Rwanda. E-mail: ekayitana@yahoo.fr
' S.H. Farbstein, 'The Effectiveness of the Exercise of Jurisdiction by the International Criminal Court: the
Issue of Complementarity' (2001), available at http://www.ecmi.de/publications/detail/12-the-
effectiveness-of-the-exercise-of-jurisdiction-by-the-international-criminal-court-the-issue-of-
complementarity-184/ (last visited 17 January 2014), 7.
2 A. Cassese, 'From Nuremberg to Rome: International Military Tribunals to the International Criminal
Court' in A. Cassese, P. Gaeta and J.R. Jones, The Rome Statute of the International Criminal Court: A
Commentary, Vol I (2002), 18.
3 Democratic Republic of The Congo v Belgium Case Concerning The Arrest Warrant of 11 April 2000
Dissenting opinion of Judge ad hoc Van den Wyngaert 2002 ICJ 3 (14 February 2002) para 37.
4 Democratic Republic of The Congo v Belgium Case Concerning The Arrest Warrant of 11 April 2000
Dissenting opinion of Judge ad hoc Van den Wyngaert 2002 ICJ 3 (14 February 2002) para 37.
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