Towards an Integrative Approach
Edited by Harmen Van der Wilt and Christophe Paulussen
Chapter 12: Ne bis in idem in an international and transnational criminal justice perspective – paving the way for an individual right?
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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