Chapter 9: Double Speak and Double Standards: Does the Jurisprudence on Retrial following Acquittal under International Criminal Law Spell the End of the Double Jeopardy Rule?
9. Doublespeak and double standards: Does the jurisprudence on retrial following acquittal under international criminal law spell the end of the double jeopardy rule? Yvonne McDermott* The rule against double jeopardy, which stipulates that no person may be tried twice for the same offence, is an integral component of the criminal justice system and constitution of most countries,1 as well as being a general principle of both human rights and international criminal law. The broad idea behind the principle and the values it seeks to protect are relatively straightforward: the powerful state, with its abundance of resources, should not be permitted to make repeated attempts to convict a person, thereby subjecting him or her to restrictions on his right to liberty, as well as to personal expense and anguish.2 The principle of finality also serves to ensure effective prosecutions at first instance, and saves witnesses from the emotional burden of having to testify more than once.3 * The author wishes to thank William A. Schabas, Middlesex University and Megan A. Fairlie, Florida International University, for their comments on an earlier draft. 1 The term ‘double jeopardy’, as is common to adversarial legal traditions, is used interchangeably with the term ‘ne bis in idem’, as the principle is called in most civil legal codes, throughout. There is a difference between the terms, insofar as the first refers to repeat prosecutions in the one jurisdiction, while ne bis in idem generally covers the rule that no-one should be prosecuted twice for the...
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