Legal Responses to Transnational and International Crimes
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Legal Responses to Transnational and International Crimes

Towards an Integrative Approach

Edited by Harmen Van der Wilt and Christophe Paulussen

This book critically reflects on the relationship between ‘core crimes’ which make up the subject matter jurisdiction of the International Criminal Court (such as war crimes, crimes against humanity, genocide, and aggression) and transnational crimes. The contributions in the book address the features of several transnational crimes and generally acknowledge that the boundaries between core crimes and transnational crimes are blurring. One of the major questions is whether, in view of this gradual merger of the categories, the distinction in legal regime is still warranted. Should prosecution and trial of transnational crimes be transferred from national to international jurisdictions?
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Chapter 12: Ne bis in idem in an international and transnational criminal justice perspective – paving the way for an individual right?

Sabine Gless

Abstract

In national criminal justice systems, defence rights have been developed and consolidated over the centuries in order to balance the state’s ius puniendi with the individual’s interests that are adversely affected by criminal prosecution. Among these principles is the right not to be tried twice for the same conduct – the so-called ne bis in idem principle. In international criminal law stricto sensu (ICL) most of these rights have been accepted within decades, including the right not to be tried twice for the same conduct. Yet, ne bis in idem is rarely accepted in transnational settings, when states join forces to fight crime closely cooperating with each other. The chapter argues the case for the defendant who has a legitimate interest to be granted the right not to be tried twice, regardless of whether he or she is tried in a purely national jurisdiction, by an international tribunal or by way of ‘transnational proceedings’.

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